[Federal Register Volume 75, Number 178 (Wednesday, September 15, 2010)]
[Rules and Regulations]
[Pages 56163-56236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-21821]



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Part II





Department of Justice





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28 CFR Parts 35 and 36



Nondiscrimination on the Basis of Disability in State and Local 
Government Services; Final Rules

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

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DEPARTMENT OF JUSTICE

28 CFR Parts 35

[CRT Docket No. 105; AG Order No. 3180-2010]
RIN 1190-AA46


Nondiscrimination on the Basis of Disability in State and Local 
Government Services

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

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

DATES: Effective Date: March 15, 2011.

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

SUPPLEMENTARY INFORMATION:

The Roles of the Access Board and the Department of Justice

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

Enactment of the ADA and Issuance of the 1991 Regulations

    On July 26, 1990, President George H.W. Bush signed into law the 
ADA, a comprehensive civil rights law prohibiting discrimination on the 
basis of disability.\1\ The ADA broadly protects the rights of 
individuals with disabilities in employment, access to State and local 
government services, places of public accommodation, transportation, 
and other important areas of American life. The ADA also requires newly 
designed and constructed or altered State and local government 
facilities, public accommodations, and commercial facilities to be 
readily accessible to and usable by individuals with disabilities. 42 
U.S.C. 12101 et seq. Section 204(a) of the ADA directs the Attorney 
General to issue regulations implementing part A of title II but 
exempts matters within the scope of the authority of the Secretary of 
Transportation under section 223, 229, or 244. See 42 U.S.C. 12134. 
Section 229(a) and section 244 of the ADA direct the Secretary of 
Transportation to issue regulations implementing part B of title II, 
except for section 223. See 42 U.S.C 12149; 42 U.S.C. 12164. Title II, 
which this rule addresses, applies to State and local government 
entities, and, in subtitle A, protects qualified individuals with 
disabilities from discrimination on the basis of disability in 
services, programs, and activities provided by State and local 
government entities. Title II extends the prohibition on discrimination 
established by section 504 of the Rehabilitation Act of 1973, as 
amended, 29 U.S.C. 794, to all activities of State and local 
governments regardless of whether these entities receive Federal 
financial assistance. 42 U.S.C. 12131B65.
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    \1\ On September 25, 2008, President George W. Bush signed into 
law the Americans with Disabilities Amendments Act of 2008 (ADA 
Amendments Act), Public Law 110-325. The ADA Amendments Act amended 
the ADA definition of disability to clarify its coverage of persons 
with disabilities and to provide guidance on the application of the 
definition. This final rule does not contain regulatory language 
implementing the ADA Amendments Act. The Department intends to 
publish a supplemental rule to amend the regulatory definition of 
``disability'' to implement the changes mandated by that law.
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    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (businesses that are 
generally open to the public and that fall into one of twelve 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities like factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181B89.
    On July 26, 1991, the Department issued rules implementing title II 
and title III, which are codified at 28 CFR part 35 (title II) and part 
36 (title III). Appendix A of the 1991 title III regulation, which is 
republished as Appendix D to 28 CFR part 36, contains the ADA Standards 
for Accessible Design (1991 Standards), which were based upon the 
version of the

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Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) 
published by the Access Board on the same date. Under the Department's 
1991 title III regulation, places of public accommodation and 
commercial facilities currently are required to comply with the 1991 
Standards with respect to newly constructed or altered facilities. The 
Department's 1991 title II regulation gives public entities the option 
of complying with the Uniform Federal Accessibility Standards (UFAS) or 
the 1991 Standards with respect to newly constructed or altered 
facilities.
    The Access Board's publication of the 2004 ADA/ABA Guidelines was 
the culmination of a long-term effort to facilitate ADA compliance by 
eliminating, to the extent possible, inconsistencies among Federal 
accessibility requirements and between Federal accessibility 
requirements and State and local building codes. In support of this 
effort, the Department is amending its regulation implementing title II 
and is adopting standards consistent with ADA Chapter 1, ADA Chapter 2, 
and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, naming them 
the 2010 ADA Standards for Accessible Design. The Department is also 
amending its title III regulation, which prohibits discrimination on 
the basis of disability by public accommodations and in commercial 
facilities, concurrently with the publication of this rule in this 
issue of the Federal Register.

Development of the 2004 ADA/ABA Guidelines

    In 1994, the Access Board began the process of updating the 1991 
ADAAG by establishing an advisory committee composed of members of the 
design and construction industry, the building code community, and 
State and local government entities, as well as individuals with 
disabilities. In 1998, the Access Board added specific guidelines on 
State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and 
building elements designed for use by children, 63 FR 2060 (Jan. 13, 
1998). In 1999, based largely on the report and recommendations of the 
advisory committee, the Access Board issued a Notice of Proposed 
Rulemaking (NPRM) to update and revise its ADA and ABA Accessibility 
Guidelines. See 64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board 
added specific guidelines on play areas. See 65 FR 62498 (Oct. 18, 
2000). The Access Board released an interim draft of its guidelines to 
the public on April 2, 2002, 67 FR 15509, in order to provide an 
opportunity for entities with model codes to consider amendments that 
would promote further harmonization. In September of 2002, the Access 
Board set forth specific guidelines on recreational facilities. 67 FR 
56352 (Sept. 3, 2002).
    By the date of its final publication on July 23, 2004, the 2004 
ADA/ABA Guidelines had been the subject of extraordinary review and 
public participation. The Access Board received more than 2,500 
comments from individuals with disabilities, affected industries, State 
and local governments, and others. The Access Board provided further 
opportunity for participation by holding public hearings.
    The Department was involved extensively in the development of the 
2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the 
Attorney General's representative voted to approve the revised 
guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA 
Guidelines provided scoping requirements for facilities subject to the 
ADA; ``scoping'' is a term used in the 2004 ADA/ABA Guidelines to 
describe requirements that prescribe which elements and spaces--and, in 
some cases, how many--must comply with the technical specifications. 
ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for 
facilities subject to the ABA (i.e., facilities designed, built, 
altered, or leased with Federal funds). Chapters 3 through 10 provide 
uniform technical specifications for facilities subject to either the 
ADA or ABA. This revised format is designed to eliminate unintended 
conflicts between the two sets of Federal accessibility standards and 
to minimize conflicts between the Federal regulations and the model 
codes that form the basis of many State and local building codes. For 
the purposes of this final rule, the Department will refer to ADA 
Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA 
Guidelines as the 2004 ADAAG.
    These amendments to the 1991 ADAAG have not been adopted previously 
by the Department as ADA Standards. Through this rule, the Department 
is adopting revised ADA Standards consistent with the 2004 ADAAG, 
including all of the amendments to the 1991 ADAAG since 1998. For the 
purposes of title II, the Department's revised standards are entitled 
``The 2010 Standards for Accessible Design'' and consist of the 2004 
ADAAG and the requirements in Sec.  35.151. Because the Department has 
adopted the 2004 ADAAG as part of its title II and title III 
regulations, once the Department's final rules become effective, the 
2004 ADAAG will have legal effect with respect to the Department's 
title II and title III regulations and will cease to be mere guidance 
for those areas regulated by the Department. In 2006, the (DOT) adopted 
the 2004 ADAAG. With respect to those areas regulated by DOT, these 
guidelines, as adopted by DOT have had legal effect since 2006.

The Department's Rulemaking History

    The Department published an advance notice of proposed rulemaking 
(ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To 
begin the process of adopting the 2004 ADAAG by soliciting public input 
on issues relating to the potential application of the Access Board's 
revisions once the Department adopts them as revised standards; and (2) 
to request background information that would assist the Department in 
preparing a regulatory analysis under the guidance provided in Office 
of Management and Budget (OMB) Circular AB4, sections D (Analytical 
Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 
17, 2003), available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010). While underscoring that the 
Department, as a member of the Access Board, already had reviewed 
comments provided to the Access Board during its development of the 
2004 ADAAG, the Department specifically requested public comment on the 
potential application of the 2004 ADAAG to existing facilities. The 
extent to which the 2004 ADAAG is used with respect to the program 
access requirement in title II (as well as with respect to the barrier 
removal requirement applicable to existing facilities under title III) 
is within the sole discretion of the Department. The ANPRM dealt with 
the Department's responsibilities under both title II and title III.
    The public response to the ANPRM was substantial. The Department 
extended the comment deadline by four months at the public's request. 
70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, 
the Department had received more than 900 comments covering a broad 
range of issues. Many of the commenters responded to questions posed 
specifically by the Department, including questions regarding the 
Department's application of the 2004 ADAAG once adopted by the 
Department and the Department's regulatory assessment of the costs and 
benefits of particular elements. Many other commenters addressed areas 
of

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desired regulation or of particular concern.
    To enhance accessibility strides made since the enactment of the 
ADA, commenters asked the Department to focus on previously unregulated 
areas such as ticketing in assembly areas; reservations for hotel 
rooms, rental cars, and boat slips; and captioning. They also asked for 
clarification on some issues in the 1991 regulations, such as the 
requirements regarding service animals. Other commenters dealt with 
specific requirements in the 2004 ADAAG or responded to questions 
regarding elements scoped for the first time in the 2004 ADAAG, 
including recreation facilities and play areas. Commenters also 
provided some information on how to assess the cost of elements in 
small facilities, office buildings, hotels and motels, assembly areas, 
hospitals and long-term care facilities, residential units, recreation 
facilities, and play areas. Still other commenters addressed the 
effective date of the proposed standards, the triggering event by which 
the effective date is calculated for new construction, and variations 
on a safe harbor that would excuse elements built in compliance with 
the 1991 Standards from compliance with the proposed standards.
    After careful consideration of the public comments in response to 
the ANPRM, on June 17, 2008, the Department published an NPRM covering 
title II (73 FR 34466). The Department also published an NPRM on that 
day covering title III (73 FR 34508). The NPRMs addressed the issues 
raised in the public's comments to the ANPRM and sought additional 
comment, generally and in specific areas, such as the Department's 
adoption of the 2004 ADAAG, the Department's regulatory assessment of 
the costs and benefits of the rule, its updates and amendments of 
certain provisions of the existing title II and III regulations, and 
areas that were in need of additional clarification or specificity.
    A public hearing was held on July 15, 2008, in Washington, D.C. 
Forty-five individuals testified in person or by phone. The hearing was 
streamed live over the Internet. By the end of the 60-day comment 
period, the Department had received 4,435 comments addressing a broad 
range of issues many of which were common to the title II and title III 
NPRMs, from representatives of businesses and industries, State and 
local government agencies, disability advocacy organizations, and 
private individuals, many of which addressed issues common to both 
NPRMs.
    The Department notes that this rulemaking was unusual in that much 
of the proposed regulatory text and many of the questions asked across 
titles II and III were the same. Consequently, many of the commenters 
did not provide separate sets of documents for the proposed title II 
and title III rules, and in many instances, the commenters did not 
specify which title was being commented upon. As a result, where 
comments could be read to apply to both titles II and III, the 
Department included them in the comments and responses for each final 
rule.
    Most of the commenters responded to questions posed specifically by 
the Department, including what were the most appropriate definitions 
for terms such as ``wheelchair,'' ``mobility device,'' and ``service 
animal''; how to quantify various benefits that are difficult to 
monetize; what requirements to adopt for ticketing and assembly areas; 
whether to adopt safe harbors for small businesses; and how best to 
regulate captioning. Some comments addressed specific requirements in 
the 2004 ADAAG or responded to questions regarding elements scoped for 
the first time in the 2004 ADAAG, including recreation facilities and 
play areas. Other comments responded to questions posed by the 
Department concerning certain specific requirements in the 2004 ADAAG.

Relationship to Other Laws

    The Department of Justice regulation implementing title II, 28 CFR 
35.103, provides the following:
    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard than 
the standards applied under title V of the Rehabilitation Act of 1973 
(29 U.S.C. 791) or the regulations issued by Federal agencies pursuant 
to that title.
    (b) Other laws. This part does not invalidate or limit the 
remedies, rights, and procedures of any other Federal, State, or local 
laws (including State common law) that provide greater or equal 
protection for the rights of individuals with disabilities or 
individuals associated with them.
    These provisions remain unchanged by the final rule. The Department 
recognizes that public entities subject to title II of the ADA may also 
be subject to title I of the ADA, which prohibits discrimination on the 
basis of disability in employment; section 504 of the Rehabilitation 
Act of 1973 and other Federal statutes that prohibit discrimination on 
the basis of disability in the programs and activities of recipients of 
Federal financial assistance; and other Federal statutes such as the 
Air Carrier Access Act (ACAA), 49 U.S.C. 41705 et seq., and the Fair 
Housing Act (FHAct), 42 U.S.C. 3601 et seq. Compliance with the 
Department's title II and title III regulations does not necessarily 
ensure compliance with other Federal statutes.
    Public entities that are subject to the ADA as well as other 
Federal disability discrimination laws must be aware of the 
requirements of all applicable laws and must comply with these laws and 
their implementing regulations. Although in many cases similar 
provisions of different statutes are interpreted to impose similar 
requirements, there are circumstances in which similar provisions are 
applied differently because of the nature of the covered entity or 
activity or because of distinctions between the statutes. For example, 
emotional support animals that do not qualify as service animals under 
the Department's title II regulation may nevertheless qualify as 
permitted reasonable accommodations for persons with disabilities under 
the FHAct and the ACAA. See, e.g., Overlook Mutual Homes, Inc. v. 
Spencer, 666 F. Supp. 2d 850 (S.D. Ohio 2009). Public entities that 
operate housing facilities must ensure that they apply the reasonable 
accommodation requirements of the FHAct in determining whether to allow 
a particular animal needed by a person with a disability into housing 
and may not use the ADA definition as a justification for reducing 
their FHAct obligations. In addition, nothing in the ADA prevents a 
covered entity subject to one statute from modifying its policies and 
providing greater access in order to assist individuals with 
disabilities in achieving access to entities subject to other Federal 
statutes. For example, a public airport is a title II facility that 
houses air carriers subject to the ACAA. The public airport operator is 
required to comply with the title II requirements, but is not covered 
by the ACAA. Conversely, the air carrier is required to comply with the 
ACAA, but is not covered by title II of the ADA. If a particular animal 
is a service animal for purposes of the ACAA and is thus allowed on an 
airplane, but is not a service animal for purposes of the ADA, nothing 
in the ADA prohibits an airport from allowing a ticketed passenger with 
a disability who is traveling with a service animal that meets the 
ACAA's definition of a service animal to bring that animal into the 
facility even though under the ADA's definition of service animal the 
animal could be lawfully excluded.

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    In addition, public entities (including AMTRAK) that provide public 
transportation services that are subject to subtitle B of title II 
should be reminded that the Department's regulation, at 28 CFR 35.102, 
provides: ``(a) Except as provided in paragraph (b) of this section, 
this part applies to all services, programs, and activities provided or 
made available by public entities. (b) To the extent that public 
transportation services, programs, and activities of public entities 
are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141 et 
seq., they are not subject to the requirements of this part.'' The ADA 
regulations of DOT at 49 CFR 37.21(c) state that entities subject to 
DOT's ADA regulations may also be subject to the ADA regulations of the 
Department of Justice. As stated in the preamble to Sec.  37.21(c) in 
DOT's 1991 regulation, ``[t]he DOT rules apply only to the entity's 
transportation facilities, vehicles, or services; the DOJ rules may 
cover the entity's activities more broadly.'' 56 FR 45584, 45736 (Sept. 
6, 1991). Nothing in this final rule alters these provisions.
    The Department recognizes that DOT has its own independent 
regulatory responsibilities under subtitle B of title II of the ADA. To 
the extent that the public transportation services, programs, and 
activities of public entities are covered by subtitle B of title II of 
the ADA, they are subject to the DOT regulations at 49 CFR parts 37 and 
39. Matters covered by subtitle A are covered by this rule. However, 
this rule should not be read to prohibit DOT from elaborating on the 
provisions of this rule in its own ADA rules in the specific regulatory 
contexts for which it is responsible, after appropriate consultation 
with the Department. For example, DOT may issue such specific 
provisions with respect to the use of non-traditional mobility devices, 
e.g., Segways[supreg], on any transportation vehicle subject to 
subtitle B. While DOT may establish transportation-specific 
requirements that are more stringent or expansive than those set forth 
in this rule, any such requirements cannot reduce the protections and 
requirements set forth in this rule.
    In addition, activities not specifically addressed by DOT's ADA 
regulation may be covered by DOT's regulation implementing section 504 
of the Rehabilitation Act for its federally assisted programs and 
activities at 49 CFR part 27. Like other programs of public entities 
that are also recipients of Federal financial assistance, those 
programs would be covered by both the section 504 regulation and this 
part. Airports operated by public entities are not subject to DOT's ADA 
regulation, but they are subject to subpart A of title II and to this 
rule. The Department of Justice regulation implementing title II 
generally, and the DOT regulations specifically implementing subtitle B 
of title II, may overlap. If there is overlap in areas covered by 
subtitle B which DOT regulates, these provisions shall be harmonized in 
accordance with the DOT regulation at 49 CFR 37.21(c).

Organization of This Rule

    Throughout this rule, the original ADA Standards, which are 
republished as Appendix D to 28 CFR part 36, will be referred to as the 
``1991 Standards.'' The original title II regulation, 28 CFR part 35, 
will be referred to as the ``1991 title II regulation.'' ADA Chapter 1, 
ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA 
Guidelines, codified at 36 CFR part 1191, app. B and D (2009) will be 
referred to as the ``2004 ADAAG.'' The Department's Notice of Proposed 
Rulemaking, 73 FR 34466 (June 17, 2008), will be referred to as the 
``NPRM.'' As noted above, the 2004 ADAAG, taken together with the 
requirements contained in Sec.  35.151 (New Construction and 
Alterations) of the final rule, will be referred to as the ``2010 
Standards.'' The amendments made to the 1991 title II regulation and 
the adoption of the 2004 ADAAG, taken together, will be referred to as 
the ``final rule.''
    In performing the required periodic review of its existing 
regulation, the Department has reviewed the title II regulation section 
by section, and, as a result, has made several clarifications and 
amendments in this rule. Appendix A of the final rule, ``Guidance on 
Revisions to ADA Regulation on Nondiscrimination on the Basis of 
Disability in State and Local Government Services,'' codified as 
Appendix A to 28 CFR part 35, provides the Department's response to 
comments and its explanations of the changes to the regulation. The 
section entitled ``Section-by-Section Analysis and Response to 
Comments'' in Appendix A provides a detailed discussion of the changes 
to the title II regulation. The Section-by-Section Analysis follows the 
order of the 1991 title II regulation, except that regulatory sections 
that remain unchanged are not referenced. The discussion within each 
section explains the changes and the reasoning behind them, as well as 
the Department's response to related public comments. Subject areas 
that deal with more than one section of the regulation include 
references to the related sections, where appropriate. The Section-by-
Section Analysis also discusses many of the questions asked by the 
Department for specific public response. The section of Appendix A 
entitled ``Other Issues'' discusses public comments on several issues 
of concern to the Department that were the subject of questions that 
are not specifically addressed in the Section-by-Section Analysis.
    The Department's description of the 2010 Standards, as well as a 
discussion of the public comments on specific sections of the 2004 
ADAAG, is found in Appendix B of the final title III rule, ``Analysis 
and Commentary on the 2010 ADA Standards for Accessible Design,'' and 
codified as Appendix B to 28 CFR part 36.
    The provisions of this rule generally take effect six months from 
its publication in the Federal Register. The Department has determined, 
however, that compliance with the 2010 Standards shall not be required 
until 18 months from the publication date of this rule. This exception 
is set forth in Sec.  35.151(c) and is discussed in greater detail in 
Appendix A. See Appendix A discussion entitled ``Section 35.151(c) New 
construction and alterations.''
    This final rule only addresses issues that were identified in the 
NPRM as subjects the Department intended to regulate through this 
rulemaking proceeding. Because the Department indicated in the NPRM 
that it did not intend to regulate certain areas, including equipment 
and furniture, accessible golf cars, and movie captioning and video 
description, as part of this rulemaking proceeding, the Department 
believes it would be appropriate to solicit more public comment about 
these areas prior to making them the subject of a rulemaking. The 
Department intends to engage in additional rulemaking in the near 
future addressing accessibility in these areas and others, including 
next generation 9-1-1 and accessibility of Web sites operated by 
covered public entities and public accommodations.

Additional Information

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

    The Department must provide two types of assessments as part of its 
final rule: an analysis of the costs and benefits of adopting the 
changes contained in this rule, and a periodic review of its existing 
regulations to consider their impact on small entities, including small 
businesses, small nonprofit organizations, and small governmental 
jurisdictions. See E.O. 12866, 58 FR 51735, 3 CFR, 1994

[[Page 56168]]

Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 
U.S.C. 601 et seq., as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB 
Circular A-4, available at http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf (last visited June 24, 2010); E.O. 13272, 67 FR 53461, 3 
CFR, 2003 Comp., p. 247.
    In the NPRM, the Department kept open the possibility that, if 
warranted by public comments received on an issue raised by the 2004 
ADAAG, or by the results of the Department's Initial Regulatory Impact 
Analysis (available at ada.gov/NPRM2008/ria.htm) showing that the 
likely costs of making a particular feature or facility accessible were 
disproportionate to the benefits (including both monetized and non-
monetized benefits) to persons with disabilities, the Attorney General, 
as a member of the Access Board, could return the issue to the Access 
Board for further consideration. After careful consideration, the 
Department has determined that it is unnecessary to return any issues 
to the Access Board for additional consideration.

Executive Order 12866

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

Final Regulatory Impact Analysis

    The Final RIA embodies a comprehensive benefit-cost analysis of the 
final rules for both title II and title III and assesses the 
incremental benefits and costs of the 2010 Standards relative to a 
primary baseline scenario (1991 Standards). In addition, the Department 
conducted additional research and analyses for requirements having the 
highest negative net present values under the primary baseline 
scenario. This approach was taken because, while the 1991 Standards are 
the only uniform set of accessibility standards that apply to public 
accommodations, commercial facilities, and State and local government 
facilities nationwide, it is also understood that many State and local 
jurisdictions have already adopted IBC/ANSI model code provisions that 
mirror those in the 2004 ADAAG. The assessments based on this approach 
assume that covered entities currently implementing codes that mirror 
the 2004 ADAAG will not need to modify their code requirements once the 
rules are finalized. They also assume that, even without the final 
rules, the current level of compliance would be unchanged. The Final 
RIA contains specific information, including data in chart form, 
detailing which States have already adopted the accessibility standards 
for this subset of six requirements. The Department believes that the 
estimates resulting from this approach represent a reasonable upper and 
lower measure of the likely effects these requirements will have that 
the Department was able to quantify and monetize.
    The Final RIA estimates the benefits and costs for all new 
(referred to as ``supplemental'') requirements and revised requirements 
across all types of newly constructed and existing facilities. The 
Final RIA also incorporates a sophisticated risk analysis process that 
quantifies the inherent uncertainties in estimating costs and benefits 
and then assesses (through computer simulations) the relative impact of 
these factors when varied simultaneously. A copy of the Final RIA will 
be made available online for public review on the Department's ADA Home 
Page (http://www.ada.gov).
    From an economic perspective (as specified in OMB Circular A-4), 
the results of the Final RIA demonstrate that the Department's final 
rules increase social resources and thus represent a public good 
because monetized benefits exceed monetized costs--that is, the 
regulations have a positive net present value (NPV). Indeed, under 
every scenario assessed in the Final RIA, the final rules have a 
positive NPV. The Final RIA's first scenario examines the incremental 
impact of the final rules using the ``main'' set of assumptions (i.e., 
assuming a primary baseline (1991 Standards), that the safe harbor 
applies, and that for title III entities barrier removal is readily 
achievable for 50 percent of elements subject to supplemental 
requirements).

                    Expected Impact of the Rules \2\
                              [In billions]
------------------------------------------------------------------------
                                       Total expected    Total expected
  Discount rate       Expected NPV      PV (benefits)      PV (costs)
------------------------------------------------------------------------
             3%              $40.4              $66.2             $25.8
             7%                9.3               22.0              12.8
------------------------------------------------------------------------
\2\ The analysis assumes these regulations will be in force for 15
  years. Incremental costs and benefits are calculated for all
  construction, alterations, and barrier removal that is expected to
  occur during these 15 years. The analysis also assumes that any new or
  revised ADA rules enacted 15 years from now will include a safe harbor
  provision. Thus, any facilities constructed in year 14 of the final
  rules are assumed to continue to generate benefits to users, and to
  incur any operating or replacement costs for the life of these
  buildings, which is assumed to be 40 years.


[[Page 56169]]

    Under this set of assumptions, the final rules have an expected NPV 
of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent 
discount rate). See Final RIA, table ES-1 & figure ES-2.
Water Closet Clearances
    The Department gave careful consideration to the costs and benefits 
of its adoption of the standards relating to water closet clearances in 
single-user toilet rooms. The primary effect of the Department's 
proposed final rules governing water closet clearances in single-user 
toilet rooms with in-swinging and out-swinging doors is to allow 
sufficient room for ``side'' or ``parallel'' methods of transferring 
from a wheelchair to a toilet. Under the current 1991 Standards, the 
requisite clearance space in single-user toilet rooms between and 
around the toilet and the lavatory does not permit these methods of 
transfer. Side or parallel transfers are used by large numbers of 
persons who use wheelchairs and are regularly taught in rehabilitation 
and occupational therapy. Currently, persons who use side or parallel 
transfer methods from their wheelchairs are faced with a stark choice 
at establishments with single-user toilet rooms--i.e., patronize the 
establishment but run the risk of needing assistance when using the 
restroom, travel with someone who would be able to provide assistance 
in toileting, or forgo the visit entirely. The revised water closet 
clearance regulations would make single-user toilet rooms accessible to 
all persons who use wheelchairs, not just those with the physical 
strength, balance, and dexterity and the training to use a front-
transfer method. Single-user toilet rooms are located in a wide variety 
of public and private facilities, including restaurants, fast-food 
establishments, schools, retail stores, parks, sports stadiums, and 
hospitals. Final promulgation of these requirements might thus, for 
example, enable a person who uses a side or parallel transfer method to 
use the restroom (or use the restroom independently) at his or her 
local coffee shop for the first time.
    Because of the complex nature of its cost-benefit analysis, the 
Department is providing ``plain language'' descriptions of the benefits 
calculations for the two revised requirements with the highest 
estimated total costs: Water closet clearance in single-user toilet 
rooms with out-swinging doors (RIA Req.  28) (section 604.3 of 
the 2010 Standards) and water closet clearance in single-user toilet 
rooms with in-swinging doors (RIA Req.  32) (sections 604.3 
and 603.2.3 Exception 2 of the 2010 Standards). Since many of the 
concepts and calculations in the Final RIA are highly technical, it is 
hoped that, by providing ``lay'' descriptions of how benefits are 
monetized for an illustrative set of requirements, the Final RIA will 
be more transparent and afford readers a more complete understanding of 
the benefits model generally. Because of the widespread adoption of the 
water closet clearance standards in existing State and local building 
codes, the following calculations use the IBC/ANSI baseline.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--out-swinging doors (Req. # 28). 
In order to assess monetized benefits for the requirement covering 
water closet clearances in single-user toilet rooms with out-swinging 
doors, a determination needed to be made concerning the population of 
users with disabilities who would likely benefit from this revised 
standard. Based on input received from a panel of experts jointly 
convened by HDR and the Department to discuss benefits-related 
estimates and assumptions used in the RIA model, it was assumed that 
accessibility changes brought about by this requirement would benefit 
persons with any type of ambulatory (i.e., mobility-related) 
disability, such as persons who use wheelchairs, walkers, or braces. 
Recent census figures estimate that about 11.9 percent of Americans 
ages 15 and older have an ambulatory disability, or about 35 million 
people. This expert panel also estimated that single-user toilet rooms 
with out-swinging doors would be used slightly less than once every 
other visit to a facility with such toilet rooms covered by the final 
rules (or, viewed another way, about once every two hours spent at a 
covered facility assumed to have one or more single-user toilet rooms 
with out-swinging doors) by an individual with an ambulatory 
disability. The expert panel further estimated that, for such 
individuals, the revised requirement would result in an average time 
savings of about five and a half minutes when using the restroom. This 
time savings is due to the revised water closet clearance standard, 
which permits, among other things, greater flexibility in terms of 
access to the toilet by parallel or side transfer, thereby perhaps 
reducing the wait for another person to assist with toileting and the 
need to twist or struggle to access the toilet independently. Based on 
average hourly wage rates compiled by the U.S. Department of Labor, the 
time savings for Req.  28 is valued at just under $10 per 
hour.
    For public and private facilities covered by the final rules, it is 
estimated that there are currently about 11 million single-user toilet 
rooms with out-swinging doors. The majority of these types of single-
user toilet rooms, nearly 7 million, are assumed to be located at 
``Indoor Service Establishments,'' a broad facility group that 
encompasses various types of indoor retail stores such as bakeries, 
grocery stores, clothing stores, and hardware stores. Based on 
construction industry data, it was estimated that approximately 3 
percent of existing single-user toilet rooms with out-swinging doors 
would be altered each year, and that the number of newly constructed 
facilities with these types of toilet rooms would increase at the rate 
of about 1 percent each year. However, due to the widespread adoption 
at the State and local level of model code provisions that mirror Req. 
 28, it is further understood that about half of all existing 
facilities assumed to have single-user toilet rooms with out-swinging 
doors already are covered by State or local building codes that require 
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be 
required to retrofit to meet the revised clearance requirements in the 
final rules.
    With respect to new construction, it is assumed that each single-
user toilet room with an out-swinging door will last the life of the 
building, about 40 years. For alterations, the amount of time such a 
toilet room will be used depends upon the remaining life of the 
building (i.e., a period of time between 1 and 39 years).
    Summing up monetized benefits to users with disabilities across all 
types of public and private facilities covered by the final rules, and 
assuming 46 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the relevant equivalent IBC/ANSI model 
code provisions, it is expected that the revised requirement for water 
closet clearance in single-user toilet rooms with out-swinging doors 
will result in net benefits of approximately $900 million over the life 
of these regulations.
    General description of monetized benefits for water closet 
clearance in single-user toilet rooms--in-swinging doors (Req. # 32). 
For the water closet clearance in single-user toilet rooms with the in-
swinging door requirement (Req. 32), the expert panel 
determined that the primary beneficiaries would be persons who use 
wheelchairs. As compared to single-user toilet rooms with out-swinging 
doors, those with in-swinging doors tend to be larger (in

[[Page 56170]]

terms of square footage) in order to accommodate clearance for the in-
swinging door and, thus, are already likely to have adequate clear 
floor space for persons with disabilities who use other types of 
mobility aids such as walkers and crutches.
    The expert benefits panel estimated that single-user toilet rooms 
with in-swinging doors are used less frequently on average--about once 
every 20 visits to a facility with such a toilet room by a person who 
uses a wheelchair--than their counterpart toilet rooms with out-
swinging doors. This panel also determined that, on average, each user 
would realize a time savings of about 9 minutes as a result of the 
enhanced clearances required by this revised standard.
    The RIA estimates that there are about 4 million single-user toilet 
rooms with in-swinging doors in existing facilities. About half of the 
single-user toilet rooms with in-swinging doors are assumed to be 
located in single-level stores, and about a quarter of them are assumed 
to be located in restaurants. Based on construction industry data, it 
was estimated that approximately 3 percent of existing single-user 
toilet rooms with in-swinging doors would be altered each year, and 
that the number of newly constructed facilities with these types of 
toilet rooms would increase at the rate of about 1 percent each year. 
However, due to the widespread adoption at the State and local level of 
model code provisions that mirror Req. 32, it is further 
understood that slightly more than 70 percent of all existing 
facilities assumed to have single-user toilet rooms with in-swinging 
doors already are covered by State or local building codes that require 
equivalent water closet clearances. Due to the general element-by-
element safe harbor provision in the final rules, no unaltered single-
user toilet rooms that comply with the current 1991 Standards will be 
required to retrofit to meet the revised clearance requirements in the 
final rules.
    Similar to the assumptions for Req. 28, it is assumed that 
newly constructed single-user toilet rooms with in-swinging doors will 
last the life of the building, about 40 years. For alterations, the 
amount of time such a toilet room will be used depends upon the 
remaining life of the building (i.e., a period of time between 1 and 39 
years). Over this time period, the total estimated value of benefits to 
users of water closets with in-swinging doors from the time they will 
save and decreased discomfort they will experience is nearly $12 
million.
    Additional benefits of water closet clearance standards. The 
standards requiring sufficient space in single-user toilet rooms for a 
wheelchair user to effect a side or parallel transfer are among the 
most costly (in monetary terms) of the new provisions in the Access 
Board's guidelines that the Department adopts in this rule--but also, 
the Department believes, one of the most beneficial in non-monetary 
terms. Although the monetized costs of these requirements substantially 
exceed the monetized benefits, the additional benefits that persons 
with disabilities will derive from greater safety, enhanced 
independence, and the avoidance of stigma and humiliation--benefits 
that the Department's economic model could not put in monetary terms--
are, in the Department's experience and considered judgment, likely to 
be quite high. Wheelchair users, including veterans returning from our 
Nation's wars with disabilities, are taught to transfer onto toilets 
from the side. Side transfers are the safest, most efficient, and most 
independence-promoting way for wheelchair users to get onto the toilet. 
The opportunity to effect a side transfer will often obviate the need 
for a wheelchair user or individual with another type of mobility 
impairment to obtain the assistance of another person to engage in what 
is, for most people, among the most private of activities. Executive 
Order 12866 refers explicitly not only to monetizable costs and 
benefits but also to ``distributive impacts'' and ``equity,'' see E.O. 
12866, section 1(a), and it is important to recognize that the ADA is 
intended to provide important benefits that are distributional and 
equitable in character. These water closet clearance provisions will 
have non-monetized benefits that promote equal access and equal 
opportunity for individuals with disabilities, and will further the 
ADA's purpose of providing ``a clear and comprehensive national mandate 
for the elimination of discrimination against individuals with 
disabilities.'' 42 U.S.C. 12101(b)(1).
    The Department's calculations indicated that, in fact, people with 
the relevant disabilities would have to place only a very small 
monetary value on these quite substantial benefits for the costs and 
benefits of these water closet clearance standards to break even. To 
make these calculations, the Department separated out toilet rooms with 
out-swinging doors from those with in-swinging doors, because the costs 
and benefits of the respective water closet clearance requirements are 
significantly different. The Department estimates that, assuming 46 
percent of covered facilities nationwide are located in jurisdictions 
that have adopted the relevant equivalent IBC/ANSI model code 
provisions, the costs of the requirement as applied to toilet rooms 
with out-swinging doors will exceed the monetized benefits by $454 
million, an annualized net cost of approximately $32.6 million. But a 
large number of people with disabilities will realize benefits of 
independence, safety, and avoided stigma and humiliation as a result of 
the requirement's application in this context. Based on the estimates 
of its expert panel and its own experience, the Department believes 
that both wheelchair users and people with a variety of other mobility 
disabilities will benefit. The Department estimates that people with 
the relevant disabilities will use a newly accessible single-user 
toilet room with an out-swinging door approximately 677 million times 
per year. Dividing the $32.6 million annual cost by the 677 million 
annual uses, the Department concludes that for the costs and benefits 
to break even in this context, people with the relevant disabilities 
will have to value safety, independence, and the avoidance of stigma 
and humiliation at just under 5 cents per visit. The Department 
believes, based on its experience and informed judgment, that 5 cents 
substantially understates the value people with the relevant 
disabilities would place on these benefits in this context.
    There are substantially fewer single-user toilet rooms with in-
swinging doors, and substantially fewer people with disabilities will 
benefit from making those rooms accessible. While both wheelchair users 
and individuals with other ambulatory disabilities will benefit from 
the additional space in a room with an out-swinging door, the 
Department believes, based on the estimates of its expert panel and its 
own experience, that wheelchair users likely will be the primary 
beneficiaries of the in-swinging door requirement. The Department 
estimates that people with the relevant disabilities will use a newly 
accessible single-user toilet room with an in-swinging door 
approximately 8.7 million times per year. Moreover, the alteration 
costs to make a single-user toilet room with an in-swinging door 
accessible are substantially higher (because of the space taken up by 
the door) than the equivalent costs of making a room with an out-
swinging door accessible. Thus, the Department calculates that, 
assuming 72 percent of covered facilities nationwide are located in 
jurisdictions that have adopted the

[[Page 56171]]

relevant equivalent IBC/ANSI model code provisions, the costs of 
applying the toilet room accessibility standard to rooms with in-
swinging doors will exceed the monetized benefits of doing so by $266.3 
million over the life of the regulations, or approximately $19.14 
million per year. Dividing the $19.14 million annual cost by the 8.7 
million annual uses, the Department concludes that for the costs and 
benefits to break even in this context, people with the relevant 
disabilities will have to value safety, independence, and the avoidance 
of stigma and humiliation at approximately $2.20 per visit. The 
Department believes, based on its experience and informed judgment, 
that this figure approximates, and probably understates, the value 
wheelchair users place on safety, independence, and the avoidance of 
stigma and humiliation in this context.
Alternate Scenarios
    Another scenario in the Final RIA explores the incremental impact 
of varying the assumptions concerning the percentage of existing 
elements subject to supplemental requirements for which barrier removal 
would be readily achievable. Readily achievable barrier removal rates 
are modeled at 0 percent, 50 percent, and 100 percent levels. The 
results of this scenario show that the expected NPV is positive for 
each readily achievable barrier removal rate and that varying this 
assumed rate has little impact on expected NPV. See Final RIA, figure 
ES-3.
    A third set of analyses in the Final RIA demonstrates the impact of 
using alternate baselines based on model codes instead of the primary 
baseline. The IBC model codes, which have been widely adopted by State 
and local jurisdictions around the country, are significant because 
many of the requirements in the final rules mirror accessibility 
provisions in the IBC model codes (or standards incorporated therein by 
reference, such as ANSI A117.1). The actual economic impact of the 
Department's final rules is, therefore, tempered by the fact that many 
jurisdictions nationwide have already adopted and are enforcing 
portions of the final rules--indeed, this was one of the goals 
underlying the Access Board's efforts to harmonize the 2004 ADAAG 
Standards with the model codes. However, capturing the economic impact 
of this reality poses a difficult modeling challenge due to the variety 
of methods by which States and localities have adopted the IBC/ANSI 
model codes (e.g., in whole, in part, and with or without amendments), 
as well as the lack of a national ``facility census'' establishing the 
location, type, and age of existing ADA-covered facilities.
    As a result, in the first set of alternate IBC baseline analyses, 
the Final RIA assumes that all of the three IBC model codes--IBC 2000, 
IBC 2003, and IBC 2006--have been fully adopted by all jurisdictions 
and apply to all facilities nationwide. As with the primary baseline 
scenarios examined in the Final RIA, use of these three alternate IBC 
baselines results in positive expected NPVs in all cases. See Final 
RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 
2006 respectively have the highest and lowest expected NPVs. These 
results are due to changes in the make-up of the set of requirements 
that is included in each alternative baseline.
    Additionally, a second, more limited alternate baseline analysis in 
the Final RIA uses a State-specific and requirement-specific alternate 
IBC/ANSI baseline in order to demonstrate the likely actual incremental 
impact of an illustrative subset of 20 requirements under current 
conditions nationwide. For this analysis, research was conducted on a 
subset of 20 requirements in the final rules that have negative net 
present values under the primary baseline and readily identifiable IBC/
ANSI counterparts to determine the extent to which they each 
respectively have been adopted at the State or local level. With 
respect to facilities, the population of adopting jurisdictions was 
used as a proxy for facility location. In other words, it was assumed 
that the number of ADA-covered facilities respectively compliant with 
these 20 requirements was equal to the percentage of the United States 
population (based on statistics from the Census Bureau) currently 
residing in those States or local jurisdictions that have adopted the 
IBC/ANSI counterparts to these requirements. The results of this more 
limited analysis, using State-specific and requirement-specific 
alternate IBC/ANSI baselines for these 20 requirements, demonstrate 
that the widespread adoption of IBC model codes by States and 
localities significantly lessens the financial impact of these specific 
requirements. Indeed, the Final RIA estimates that, if the NPVs for 
these 20 requirements resulting from the requirement-specific alternate 
IBC/ANSI baseline are substituted for their respective results under 
the primary baseline, the overall NPV for the final rules increases 
from $9.2 billion to $12.0 billion. See Final RIA, section 6.2.2 & 
table 10.
Benefits Not Monetized in the Formal Analysis
    Finally, the RIA recognizes that additional benefits are likely to 
result from the new standards. Many of these benefits are more 
difficult to quantify. Among the potential benefits that have been 
discussed by researchers and advocates are reduced administrative costs 
due to harmonized guidelines, increased business opportunities, 
increased social development, and improved health benefits. For 
example, the final rules will substantially increase accessibility at 
newly scoped facilities such as recreation facilities and judicial 
facilities, which previously have been very difficult for persons with 
disabilities to access. Areas where the Department believes entities 
may incur benefits that are not monetized in the formal analysis 
include, but may not be limited to, the following:
    Use benefits accruing to persons with disabilities. The final rules 
should improve the overall sense of well-being of persons with 
disabilities, who will know that public entities and places of public 
accommodation are generally accessible, and who will have improved 
individual experiences. Some of the most frequently cited qualitative 
benefits of increased access are the increase in one's personal sense 
of dignity that arises from increased access and the decrease in 
possibly humiliating incidents due to accessibility barriers. 
Struggling to join classmates on a stage, to use a bathroom with too 
little clearance, or to enter a swimming pool all negatively affect a 
person's sense of independence and can lead to humiliating accidents, 
derisive comments, or embarrassment. These humiliations, together with 
feelings of being stigmatized as different or inferior from being 
relegated to use other, less comfortable or pleasant elements of a 
facility (such as a bathroom instead of a kitchen sink for rinsing a 
coffee mug at work), all have a negative effect on persons with 
disabilities.
    Use benefits accruing to persons without disabilities. Improved 
accessibility can affect more than just the rule's target population; 
persons without disabilities may also benefit from many of the 
requirements. Even though the requirements were not designed to benefit 
persons without disabilities, any time savings or easier access to a 
facility experienced by persons without disabilities are also benefits 
that should properly be attributed to that change in accessibility. 
Curb cuts in sidewalks make life easier for those using wheeled 
suitcases or pushing a baby stroller. For people with

[[Page 56172]]

a lot of luggage or a need to change clothes, the larger bathroom 
stalls can be highly valued. A ramp into a pool can allow a child (or 
adult) with a fear of water to ease into that pool. All are examples of 
``unintended'' benefits of the rule. And ideally, all should be part of 
the calculus of the benefits to society of the rule.
    Social benefits. Evidence supports the notion that children with 
and without disabilities benefit in their social development from 
interaction with one another. Therefore, there will likely be social 
development benefits generated by an increase in accessible play areas. 
However, these benefits are nearly impossible to quantify for several 
reasons. First, there is no guarantee that accessibility will generate 
play opportunities between children with and without disabilities. 
Second, there may be substantial overlap between interactions at 
accessible play areas and interactions at other facilities, such as 
schools and religious facilities. Third, it is not certain what the 
unit of measurement for social development should be.
    Non-use benefits. There are additional, indirect benefits to 
society that arise from improved accessibility. For instance, resource 
savings may arise from reduced social service agency outlays when 
people are able to access centralized points of service delivery rather 
than receiving home-based care. Home-based and other social services 
may include home health care visits and welfare benefits. Third-party 
employment effects can arise when enhanced accessibility results in 
increasing rates of consumption by disabled and non-disabled 
populations, which in turn results in reduced unemployment.
    Two additional forms of benefits are discussed less often, let 
alone quantified: Option value and existence value. Option value is the 
value that people with and without disabilities derive from the option 
of using accessible facilities at some point in the future. As with 
insurance, people derive benefit from the knowledge that the option to 
use the accessible facility exists, even if it ultimately goes unused. 
Simply because an individual is a non-user of accessible elements today 
does not mean that he or she will remain so tomorrow. In any given 
year, there is some probability that an individual will develop a 
disability (either temporary or permanent) that will necessitate use of 
these features. For example, the 2000 Census found that 41.9 percent of 
adults 65 years and older identified themselves as having a disability. 
Census Bureau figures, moreover, project that the number of people 65 
years and older will more than double between 2000 and 2030--from 35 
million to 71.5 million. Therefore, even individuals who have no direct 
use for accessibility features today get a direct benefit from the 
knowledge of their existence should such individuals need them in the 
future.
    Existence value is the benefit that individuals get from the plain 
existence of a good, service or resource--in this case, accessibility. 
It can also be described as the value that people both with and without 
disabilities derive from the guarantees of equal treatment and non-
discrimination that are accorded through the provision of accessible 
facilities. In other words, people value living in a country that 
affords protections to individuals with disabilities, whether or not 
they themselves are directly or indirectly affected. Unlike use 
benefits and option value, existence value does not require an 
individual ever to use the resource or plan on using the resource in 
the future. There are numerous reasons why individuals might value 
accessibility even if they do not require it now and do not anticipate 
needing it in the future.
Costs Not Monetized in the Formal Analysis
    The Department also recognizes that in addition to benefits that 
cannot reasonably be quantified or monetized, there may be negative 
consequences and costs that fall into this category as well. The 
absence of a quantitative assessment of such costs in the formal 
regulatory analysis is not meant to minimize their importance to 
affected entities; rather, it reflects the inherent difficulty in 
estimating those costs. Areas where the Department believes entities 
may incur costs that are not monetized in the formal analysis include, 
but may not be limited to, the following:
    Costs from deferring or forgoing alterations. Entities covered by 
the final rules may choose to delay otherwise desired alterations to 
their facilities due to the increased incremental costs imposed by 
compliance with the new requirements. This may lead to facility 
deterioration and decrease in the value of such facilities. In extreme 
cases, the costs of complying with the new requirements may lead some 
entities to opt to not build certain facilities at all. For example, 
the Department estimates that the incremental costs of building a new 
wading pool associated with the final rules will increase by about 
$142,500 on average. Some facilities may opt to not build such pools to 
avoid incurring this increased cost.
    Loss of productive space while modifying an existing facility. 
During complex alterations, such as where moving walls or plumbing 
systems will be necessary to comply with the final rules, productive 
space may be unavailable until the alterations are complete. For 
example, a hotel altering its bathrooms to comply with the final rules 
will be unable to allow guests to occupy these rooms while construction 
activities are underway, and thus the hotel may forgo revenue from 
these rooms during this time. While the amount of time necessary to 
perform alterations varies significantly, the costs associated with 
unproductive space could be high in certain cases, especially if space 
is already limited or if an entity or facility is located in an area 
where real estate values are particularly high (e.g., New York or San 
Francisco).
    Expert fees. Another type of cost to entities that is not monetized 
in the formal analysis is legal fees to determine what, if anything, a 
facility needs to do in order to comply with the new rules or to 
respond to lawsuits. Several commenters indicated that entities will 
incur increased legal costs because the requirements are changing for 
the first time since 1991. Since litigation risk could increase, 
entities could spend more on legal fees than in the past. Likewise, 
covered entities may face incremental costs when undertaking 
alterations because their engineers, architects, or other consultants 
may also need to consider what modifications are necessary to comply 
with the new requirements. The Department has not quantified the 
incremental costs of the services of these kinds of experts.
    Reduction in facility value and losses to individuals without 
disabilities due to the new accessibility requirements. It is possible 
that some changes made by entities to their facilities in order to 
comply with the new requirements may result in fewer individuals 
without disabilities using such facilities (because of decreased 
enjoyment) and may create a disadvantage for individuals without 
disabilities, even though the change might increase accessibility for 
individuals with disabilities. For example, the new requirements for 
wading pools might decrease the value of the pool to the entity that 
owns it due to fewer individuals using it (because the new requirements 
for a sloped entry might make the pool too shallow). Similarly, several 
commenters from the miniature golf industry expressed concern that it 
would be difficult to comply with the

[[Page 56173]]

regulations for accessible holes without significantly degrading the 
experience for other users. Finally, with respect to costs to 
individuals who do not have disabilities, a very tall person, for 
example, may be inconvenienced by having to reach further for a lowered 
light switch.

Section 610 Review

    The Department is also required to conduct a periodic regulatory 
review pursuant to section 610 of the RFA. The review requires agencies 
to consider five factors: (1) The continued need for the rule; (2) the 
nature of complaints or comments received concerning the rule from the 
public; (3) the complexity of the rule; (4) the extent to which the 
rule overlaps, duplicates, or conflicts with other Federal rules, and, 
to the extent feasible, with State and local governmental rules; and 
(5) the length of time since the rule has been evaluated or the degree 
to which technology, economic conditions, or other factors have changed 
in the area affected by the rule. See 5 U.S.C. 610(b). Based on these 
factors, the agency is required to determine whether to continue the 
rule without change or to amend or rescind the rule, to minimize any 
significant economic impact of the rule on a substantial number of 
small entities. See id. 610(a).
    In developing the 2010 Standards, the Department reviewed the 1991 
Standards section by section and, as a result, has made several 
clarifications and amendments in both the title II and title III 
implementing regulations. The changes reflect the Department's analysis 
and review of complaints or comments from the public, as well as 
changes in technology. Many of the amendments aim to clarify and 
simplify the obligations of covered entities. As discussed in greater 
detail above, one significant goal of the development of the 2004 ADAAG 
was to eliminate duplication or overlap in Federal accessibility 
guidelines, as well as to harmonize the Federal guidelines with model 
codes. The Department has also worked to create harmony where 
appropriate between the requirements of titles II and III. Finally, 
while the regulation is required by statute and there is a continued 
need for it as a whole, the Department proposes several modifications 
that are intended to reduce its effects on small entities.
    The Department has consulted with the Small Business 
Administration's Office of Advocacy about this process. The Office of 
Advocacy has advised that although the process followed by the 
Department was ancillary to the proposed adoption of revised ADA 
Standards, the steps taken to solicit public input and to respond to 
public concerns are functionally equivalent to the process required to 
complete a section 610 review. Therefore, this rulemaking fulfills the 
Department's obligations under section 610 of the RFA.

Final Regulatory Flexibility Analysis

    The final rule also has been reviewed by the Small Business 
Administration's Office of Advocacy (Advocacy) in accordance with 
Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter 
Seven of the Final RIA demonstrates that the final rule will not have a 
significant economic impact on a substantial number of small 
governmental jurisdictions or facilities. The Department has also 
conducted a final regulatory flexibility analysis (FRFA) as a component 
of this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final 
RIA, and 2010 Standards, include all of the elements of a FRFA required 
by the Regulatory Flexibility Act (RFA). See 5 U.S.C. 604(a)(1)-(5).
    Section 604(a) lists the specific requirements for a FRFA. The 
Department has addressed these RFA requirements throughout the ANPRM, 
NPRM, the 2010 Standards, and the RIA. In summary, the Department has 
satisfied its FRFA obligations under section 604(a) by providing the 
following:
    1. Succinct summaries of the need for, and objectives of, the final 
rules. The Department is issuing this final rule in order to comply 
with its obligations under both the ADA and the SBREFA. The Department 
is also updating or amending certain provisions of the existing title 
II regulations so that they are consistent with the title III 
regulations and accord with the Department's legal and practical 
experiences in enforcing the ADA.
    The ADA requires the Department to adopt enforceable accessibility 
standards under the ADA that are consistent with the Access Board's 
minimum accessibility guidelines and requirements. Accordingly, this 
rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of 
the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will 
give the guidelines legal effect with respect to the Department's title 
II and title III regulations.
    Under the SBREFA, the Department is required to perform a periodic 
review of its 1991 rule because the rule may have a significant 
economic impact on a substantial number of small entities. The SBREFA 
also requires the Department to make a regulatory assessment of the 
costs and benefits of any significant regulatory action. See preamble 
sections of the final rules for titles II and III entitled, ``Summary'' 
and ``The Department's Rulemaking History''; Department of Justice 
ANPRM, 69 FR 58768, 58768-70 (Sept. 30, 2004) (outlining the regulatory 
history, goals, and rationale underlying DOJ's proposal to revise its 
regulations implementing titles II and III of the ADA); Department of 
Justice NPRM, 73 FR 34508, 34508-14 (June 17, 2008) (outlining the 
regulatory history and rationale underlying DOJ's proposal to revise 
its regulations implementing titles II and III of the ADA).
    2. Summaries of significant issues raised by public comments in 
response to the Department's initial regulatory flexibility analysis 
(IRFA) and discussions of regulatory revisions made as a result of such 
comments. The Department received no comments addressing specific 
substantive issues regarding the IRFA for the title II NPRM. However, 
the Office of Advocacy (Advocacy) of the U.S. Small Business 
Administration did provide specific comments on the title III NPRM, 
which may be relevant to the title II IRFA. Accordingly, the Department 
has included those comments here.
    Advocacy acknowledged how the Department took into account the 
comments and concerns of small entities. However, Advocacy remained 
concerned about certain items in the Department's NPRM and requested 
clarification or additional guidance on certain items.
    General Safe Harbor. Advocacy expressed support for the 
Department's proposal to allow an element-by-element safe harbor for 
elements that now comply with the 1991 ADA Standards and encouraged the 
Department to include specific technical assistance in the Small 
Business Compliance Guide that the Department is required to publish 
pursuant to section 212 of the SBREFA. Advocacy requested that 
technical assistance outlining which standards are subject to the safe 
harbor be included in the Department's guidance. The Department has 
provided a list of the new requirements in the 2010 Standards that are 
not eligible for the safe harbor in Sec.  35.150(b)(2)(ii)(A) through 
Sec.  35.150(b)(2)(ii)(L) of the final rule and plans to include 
additional information about the application of the safe harbor in the 
Department's Small Business Compliance Guide. Advocacy also requested 
that guidance regarding the two effective dates for regulations also be 
provided and the Department plans

[[Page 56174]]

to include such guidance in its Small Business Compliance Guide.
    Indirect Costs. Advocacy expressed concern that small entities 
would incur substantial indirect costs under the final rules for 
accessibility consultants, legal counsel, training, and the development 
of new policies and procedures. The Department believes that such 
``indirect costs,'' even assuming they would occur as described by 
Advocacy, are not properly attributed to the Department's final rules 
implementing the ADA.
    The vast majority of the new requirements are incremental changes 
subject to a safe harbor. All small entities currently in compliance 
with the 1991 Standards will neither need to undertake further 
retrofits nor require the services of a consultant to tell them so. If, 
on the other hand, elements at an existing facility are not currently 
in compliance with the 1991 Standards, then the cost of making such a 
determination and bringing these elements into compliance are not 
properly attributed to the final rules, but to lack of compliance with 
the 1991 Standards.
    For the limited number of requirements in the final rule that are 
supplemental (i.e., relating to accessibility at courthouses, play 
areas, and recreation facilities), the Department believes that covered 
entities simply need to determine whether they have an element covered 
by a supplemental requirement (e.g., a swimming pool) and then conduct 
any work necessary to provide program access either in-house or by 
contacting a local contractor. Determining whether such an element 
exists is expected to take only a minimal amount of staff time. 
Nevertheless, Chapter 5.3 of the Final RIA has a high-end estimate of 
the additional management costs of such evaluation (from 1 to 8 hours 
of staff time).
    The Department also anticipates that small entities will incur 
minimal costs for accessibility consultants to ensure compliance with 
the new requirements for New Construction and Alterations in the final 
rules. Both the 2004 ADAAG and the proposed requirements have been made 
public for some time and are already being incorporated into design 
plans by architects and builders. Further, in adopting the final rules, 
the Department has sought to harmonize, to the greatest extent 
possible, the ADA Standards with model codes that have been adopted on 
a widespread basis by State and local jurisdictions across the country. 
Accordingly, many of the requirements in the final rules are already 
incorporated into building codes nationwide. Additionally, it is 
assumed to be part of the regular course of business--and thereby 
incorporated into standard professional services or construction 
contracts--for architects and contractors to keep abreast of changes in 
applicable Federal, State, and local laws and building codes. Given 
these considerations, the Department has determined that the additional 
costs, if any, for architectural or contractor services that arise out 
of the final rules are expected to be minimal.
    Some business commenters stated that the final rules would require 
them to develop new policies or manuals to retrain employees on the 
revised ADA standards. However, it is the Department's view that 
because the revised and supplemental requirements address architectural 
issues and features, the final rules would require minimal, if any, 
changes to the overall policies and procedures of covered entities.
    Finally, commenters representing business interests expressed the 
view that the final rules would cause businesses to incur significant 
legal costs in order to defend ADA lawsuits. However, regulatory impact 
analyses are not an appropriate forum for assessing the cost covered 
entities may bear, or the repercussions they may face, for failing to 
comply (or allegedly failing to comply) with current law. See Final 
RIA, Ch. 3, section 3.1.4, id., at Ch. 5, id. at table 15.
    3. Estimates of the number and type of small entities to which the 
final rules will apply. The Department estimates that the final rules 
will apply to approximately 89,000 facilities operated by small 
governmental jurisdictions covered by title II. See Final RIA, Ch. 7, 
``Small Business Impact Analysis,'' table 17, and app. 5, ``Small 
Business Data of the RIA'' (available for review at 
http:[sol][sol]www.ada.gov); see also 73 FR 36964 (June 30, 2008), app. 
B: Initial Regulatory Assessment, sections entitled, ``Regulatory 
Alternatives,'' ``Regulatory Proposals with Cost Implications,'' and 
``Measurement of Incremental Benefits'' (estimating the number of small 
entities the Department believes may be impacted by the NPRM and 
calculating the likely incremental economic impact of these rules on 
small facilities or entities versus ``typical'' (i.e., average-sized) 
facilities or entities).
    4. A description of the projected reporting, record-keeping, and 
other compliance requirements of the final rules, including an estimate 
of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record. The final rules impose no new 
record-keeping or reporting requirements. See preamble sections of the 
final rule for titles II and III entitled, ``Paperwork Reduction Act.'' 
Small entities may incur costs as a result of complying with the final 
rules. These costs are detailed in the Final RIA, Chapter 7, ``Small 
Business Impact Analysis'' and accompanying Appendix 5, ``Small 
Business Data'' (available for review at http:[sol][sol]www.ada.gov).
    5. Descriptions of the steps taken by the Department to minimize 
any significant economic impact on small entities consistent with the 
stated objectives of the ADA, including the reasons for selecting the 
alternatives adopted in the final rules and for rejecting other 
significant alternatives. From the outset of this rulemaking, the 
Department has been mindful of small entities and has taken numerous 
steps to minimize the impact of the final rule on small governmental 
jurisdictions. Several of these steps are summarized below.
    As an initial matter, the Department--as a voting member of the 
Access Board--was extensively involved in the development of the 2004 
ADAAG. These guidelines, which are incorporated into the 2010 
Standards, reflect a conscious effort to mitigate any significant 
economic impact on small entities in several respects. First, one of 
the express goals of the 2004 ADAAG is harmonization of Federal 
accessibility guidelines with industry standards and model codes that 
often form the basis of State and local building codes, thereby 
minimizing the impact of these guidelines on all covered entities, but 
especially small entities. Second, the 2004 ADAAG is the product of a 
10-year rulemaking effort in which a host of private and public 
entities, including groups representing government entities, worked 
cooperatively to develop accessibility guidelines that achieved an 
appropriate balance between accessibility and cost. For example, as 
originally recommended by the Access Board's Recreation Access Advisory 
Committee, all holes on a miniature golf course would be required to be 
accessible except for sloped surfaces where the ball could not come to 
rest. See, e.g., ``ADA Accessibility Guidelines for Buildings and 
Facilities--Recreation Facilities and Outdoor Developed Areas,'' Access 
Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 
1994). Miniature golf trade groups and facility operators, who are 
nearly all small businesses or small governmental jurisdictions, 
expressed significant concern that such requirements would

[[Page 56175]]

be prohibitively expensive, require additional space, and might 
fundamentally alter the nature of their courses. See, e.g., ``ADA 
Accessibility Guidelines for Buildings and Facilities--Recreation 
Facilities,'' Access Board Notice of Proposed Rulemaking, 64 FR 37326 
(July 9, 1999). In consideration of such concerns, and after holding 
informational meetings with miniature golf representatives and persons 
with disabilities, the Access Board significantly revised the final 
miniature golf guidelines. The final guidelines not only reduced 
significantly the number of holes required to be accessible to 50 
percent of all holes (with one break in the sequence of consecutive 
holes permitted), but also added an exemption for carpets used on 
playing surfaces, modified ramp landing slope and size requirements, 
and reduced the space required for start of play areas. See, e.g., 
``ADA Accessibility Guidelines for Buildings and Facilities--Recreation 
Facilities Final Rule,'' 67 FR 56352, 56375B76 (Sept. 3, 2002) 
(codified at 36 CFR parts 1190 and 1191).
    The Department also published an ANPRM to solicit public input on 
the adoption of the 2004 ADAAG as the revised Federal accessibility 
standards implementing titles II and III of the ADA. Among other 
things, the ANPRM specifically invited comment from small entities 
regarding the proposed rules' potential economic impact and suggested 
regulatory alternatives to ameliorate any such impact. See ANPRM, 69 FR 
58768, 58778-79 (Sept. 30, 2004). The Department received over 900 
comments and small entities' interests figured prominently. See NPRM, 
73 FR 34466, 34468, 34501 (June 17, 2008).
    Subsequently, when the Department published its NPRM in June 2008, 
several regulatory proposals were included to address concerns raised 
by small businesses and small local governmental jurisdictions in ANPRM 
comments. First, to mitigate costs to existing facilities, the 
Department proposed an element-by-element safe harbor that would exempt 
elements in compliance with applicable technical and scoping 
requirements in the 1991 Standards from any program accessibility 
retrofit obligations under the revised title II rules. Id. at 34485. 
While this proposed safe harbor applied to title-II covered entities 
irrespective of size, it was small governmental jurisdictions that 
especially stood to benefit since, according to comments from small 
entities, such jurisdictions are more likely to operate in older 
buildings and facilities. Additionally, the NPRM sought public input on 
the inclusion of reduced scoping provisions for certain types of small 
existing recreational facilities (i.e., swimming pools, play areas, and 
saunas). Id. at 34485-88.
    During the NPRM comment period, the Department engaged in 
considerable public outreach to small entities. A public hearing was 
held in Washington, D.C, during which nearly 50 persons testified in 
person or by phone, including several small business owners. See 
Transcript of the Public Hearing on Notices of Proposed Rulemaking 
(July 15, 2008), available at http://www.ada.gov/NPRM2008/public_hearing_transcript.htm. This hearing was also streamed live over the 
Internet. By the end of the 60-day comment period, the Department had 
also received nearly 4,500 public comments on the NPRMs, including a 
significant number of comments reflecting the perspectives of small 
governmental jurisdictions on a wide range of regulatory issues.
    In addition to soliciting input from small entities through the 
formal process for public comment, the Department also targeted small 
entities with less formal regulatory discussions, including a Small 
Business Roundtable convened by the Office of Advocacy and held at the 
offices of the Small Business Administration in Washington, DC, and an 
informational question-and-answer session concerning the title II and 
III NPRMs at the Department of Justice in which business 
representatives attended in-person and by telephone. These outreach 
efforts provided the small business community with information on the 
NPRM proposals being considered by the Department and gave small 
entities the opportunity to ask questions of the Department and provide 
feedback.
    As a result of the feedback provided by representatives of small 
business interests on the title II NPRM, the Department was able to 
assess the impact of various alternatives on small governmental 
jurisdictions before adopting its final rule and took steps to minimize 
any significant impact on small entities. Most notably, the final rule 
retains the element-by-element safe harbor, for which the community of 
small businesses and small governmental jurisdictions voiced strong 
support. See Appendix A discussion of safe harbor (Sec.  35.150(b)(2)). 
The Department believes that this element-by-element safe harbor 
provision will go a long way toward mitigating the economic impact of 
the final rule on existing facilities owned or operated by small 
governmental jurisdictions.
    Additional regulatory measures mitigating the economic impact of 
the final rule on entities covered by title II (including small 
governmental jurisdictions) include deletion of the proposed 
requirement for captioning of safety and emergency information on 
scoreboards at sporting venues, retention of the proposed path of 
travel safe harbor, and extension of the compliance date of the 2010 
Standards as applied to new construction and alterations from 6 months 
to 18 months after publication of the final rule. See Appendix A 
discussions of captioning at sporting venues (Sec.  35.160), path of 
travel safe harbor (Sec.  35.151(b)(4)(ii)(C)), and accessibility 
standards compliance dates for new construction and alterations (Sec.  
35.151(c)).
    One set of proposed alternative measures that would have 
potentially provided some cost savings to small public entities--the 
reduced scoping for certain existing recreational facilities--was not 
adopted by the Department in the final rule. While these proposals were 
not specific to small entities, they nonetheless might have mitigated 
the impact of the final rule for some small governmental jurisdictions 
that owned or operated existing facilities at which these recreational 
elements were located. See Appendix A discussion of existing 
facilities. The Department gave careful consideration to how best to 
insulate small entities from overly burdensome costs under the 2010 
Standards for existing small play areas, swimming pools, and saunas, 
while still ensuring accessible and integrated recreational facilities 
that are of great importance to persons with disabilities. The 
Department concluded that the existing program accessibility standard 
(coupled with the new general element-by-element safe harbor), rather 
than specific exemptions for these types of existing facilities, is the 
most efficacious method by which to protect small governmental 
jurisdictions.
    Once the final rule is promulgated, small entities will also have a 
wealth of documents to assist them in complying with the 2010 
Standards. For example, accompanying the title III final rule in the 
Federal Register is the Department's ``Analysis and Commentary on the 
2010 ADA Standards for Accessible Design'' (codified as Appendix B to 
28 CFR part 36), which provides a plain language description of the 
revised scoping and technical requirements in these Standards and 
provides illustrative figures. The Department also expects to publish 
guidance specifically tailored to small businesses in the form of a 
small

[[Page 56176]]

business compliance guide, as well as to publish technical assistance 
materials of general interest to all covered entities following 
promulgation of the final rule. Additionally, the Access Board has 
published a number of guides that discuss and illustrate application of 
the 2010 Standards to play areas and various types of recreational 
facilities.

Executive Order 13132

    Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, 
requires executive branch agencies to consider whether a rule will have 
federalism implications. That is, the rulemaking agency must determine 
whether the rule is likely to have substantial direct effects on State 
and local governments, a substantial direct effect on the relationship 
between the Federal Government and the States and localities, or a 
substantial direct effect on the distribution of power and 
responsibilities among the different levels of government. If an agency 
believes that a rule is likely to have federalism implications, it must 
consult with State and local elected officials about how to minimize or 
eliminate the effects.
    Title II of the ADA covers State and local government programs, 
services, and activities and, therefore, clearly has some federalism 
implications. State and local governments have been subject to the ADA 
since 1991, and the majority have also been required to comply with the 
requirements of section 504. Hence, the ADA and the title II regulation 
are not novel for State and local governments. In its adoption of the 
2010 Standards, the Department was mindful of its obligation to meet 
the objectives of the ADA while also minimizing conflicts between State 
law and Federal interests.
    The 2010 Standards address and minimize federalism concerns. As a 
member of the Access Board, the Department was privy to substantial 
feedback from State and local governments throughout the development of 
the Board's 2004 guidelines. Before those guidelines were finalized as 
the 2004 ADA/ABA Guidelines, they addressed and minimized federalism 
concerns expressed by State and local governments during the 
development process. Because the Department adopted ADA Chapter 1, ADA 
Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as 
part of the 2010 Standards, the steps taken in the 2004 ADA/ABA 
Guidelines to address federalism concerns are reflected in the 2010 
Standards.
    The Department also solicited and received input from public 
entities in the September 2004 ANPRM and the June 2008 NPRM. Through 
the ANPRM and NPRM processes, the Department solicited comments from 
elected State and local officials and their representative national 
organizations about the potential federalism implications. The 
Department received comments addressing whether the ANPRM and NPRM 
directly affected State and local governments, the relationship between 
the Federal Government and the States, and the distribution of power 
and responsibilities among the various levels of government. This rule 
preempts State laws affecting entities subject to the ADA only to the 
extent that those laws conflict with the requirements of the ADA, as 
set forth in the rule.
    Title III of the ADA covers public accommodations and commercial 
facilities. These facilities are generally subject to regulation by 
different levels of government, including Federal, State, and local 
governments. The ADA and the Department's implementing regulations set 
minimum civil rights protections for individuals with disabilities that 
in turn may affect the implementation of State and local laws, 
particularly building codes. The Department's implementing regulations 
address federalism concerns and mitigate federalism implications, 
particularly the provisions that streamline the administrative process 
for State and local governments seeking ADA code certification under 
title III.

National Technology Transfer and Advancement Act of 1995

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

Plain Language Instructions

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

Paperwork Reduction Act

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

Unfunded Mandates Reform Act

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

[[Page 56177]]

provisions of the Unfunded Mandates Reform Act.

List of Subjects for 28 CFR Part 35

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Communications, Individuals with disabilities, Reporting 
and recordkeeping requirements, State and local governments.

0
By the authority vested in me as Attorney General by law, including 28 
U.S.C. 509 and 510, 5 U.S.C. 301, and section 204 of the Americans with 
Disabilities Act of 1990, Pub. L. 101-336, 42 U.S.C. 12134, and for the 
reasons set forth in Appendix A to 28 CFR part 35, chapter I of title 
28 of the Code of Federal Regulations shall be amended as follows--

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

0
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.

Subpart A--General

0
2. Amend Sec.  35.104 by adding the following definitions of 1991 
Standards, 2004 ADAAG, 2010 Standards, direct threat, existing 
facility, housing at a place of education, other power-driven mobility 
device, service animal, qualified reader, video remote interpreting 
(VRI) service, and wheelchair in alphabetical order and revising the 
definitions of auxiliary aids and services and qualified interpreter to 
read as follows:


Sec.  35.104  Definitions.

    1991 Standards means the requirements set forth in the ADA 
Standards for Accessible Design, originally published on July 26, 1991, 
and republished as Appendix D to 28 CFR part 36.
    2004 ADAAG means the requirements set forth in appendices B and D 
to 36 CFR part 1191 (2009).
    2010 Standards means the 2010 ADA Standards for Accessible Design, 
which consist of the 2004 ADAAG and the requirements contained in Sec.  
35.151.
    Auxiliary aids and services includes--(1) Qualified interpreters 
on-site or through video remote interpreting (VRI) services; 
notetakers; real-time computer-aided transcription services; written 
materials; exchange of written notes; telephone handset amplifiers; 
assistive listening devices; assistive listening systems; telephones 
compatible with hearing aids; closed caption decoders; open and closed 
captioning, including real-time captioning; voice, text, and video-
based telecommunications products and systems, including text 
telephones (TTYs), videophones, and captioned telephones, or equally 
effective telecommunications devices; videotext displays; accessible 
electronic and information technology; or other effective methods of 
making aurally delivered information available to individuals who are 
deaf or hard of hearing;
    (2) Qualified readers; taped texts; audio recordings; Brailled 
materials and displays; screen reader software; magnification software; 
optical readers; secondary auditory programs (SAP); large print 
materials; accessible electronic and information technology; or other 
effective methods of making visually delivered materials available to 
individuals who are blind or have low vision;
    (3) Acquisition or modification of equipment or devices; and
    (4) Other similar services and actions.
* * * * *
    Direct threat means a significant risk to the health or safety of 
others that cannot be eliminated by a modification of policies, 
practices or procedures, or by the provision of auxiliary aids or 
services as provided in Sec.  35.139.
* * * * *
    Existing facility means a facility in existence on any given date, 
without regard to whether the facility may also be considered newly 
constructed or altered under this part.
* * * * *
    Housing at a place of education means housing operated by or on 
behalf of an elementary, secondary, undergraduate, or postgraduate 
school, or other place of education, including dormitories, suites, 
apartments, or other places of residence.
* * * * *
    Other power-driven mobility device means any mobility device 
powered by batteries, fuel, or other engines--whether or not designed 
primarily for use by individuals with mobility disabilities--that is 
used by individuals with mobility disabilities for the purpose of 
locomotion, including golf cars, electronic personal assistance 
mobility devices (EPAMDs), such as the Segway[supreg] PT, or any 
mobility device designed to operate in areas without defined pedestrian 
routes, but that is not a wheelchair within the meaning of this 
section. This definition does not apply to Federal wilderness areas; 
wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 
42 U.S.C. 12207(c)(2).
* * * * *
    Qualified interpreter means an interpreter who, via a video remote 
interpreting (VRI) service or an on-site appearance, is able to 
interpret effectively, accurately, and impartially, both receptively 
and expressively, using any necessary specialized vocabulary. Qualified 
interpreters include, for example, sign language interpreters, oral 
transliterators, and cued-language transliterators.
* * * * *
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary specialized vocabulary.
* * * * *
    Service animal means any dog that is individually trained to do 
work or perform tasks for the benefit of an individual with a 
disability, including a physical, sensory, psychiatric, intellectual, 
or other mental disability. Other species of animals, whether wild or 
domestic, trained or untrained, are not service animals for the 
purposes of this definition. The work or tasks performed by a service 
animal must be directly related to the handler's disability. Examples 
of work or tasks include, but are not limited to, assisting individuals 
who are blind or have low vision with navigation and other tasks, 
alerting individuals who are deaf or hard of hearing to the presence of 
people or sounds, providing non-violent protection or rescue work, 
pulling a wheelchair, assisting an individual during a seizure, 
alerting individuals to the presence of allergens, retrieving items 
such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and the 
provision of emotional support, well-being, comfort, or companionship 
do not constitute work or tasks for the purposes of this definition.
* * * * *
    Video remote interpreting (VRI) service means an interpreting 
service that uses video conference technology over dedicated lines or 
wireless technology offering high-speed, wide-bandwidth video 
connection that delivers high-quality video images as provided in Sec.  
35.160(d).
* * * * *
    Wheelchair means a manually-operated or power-driven device

[[Page 56178]]

designed primarily for use by an individual with a mobility disability 
for the main purpose of indoor or of both indoor and outdoor 
locomotion. This definition does not apply to Federal wilderness areas; 
wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 
42 U.S.C. 12207(c)(2).

Subpart B--General Requirements

0
3. Amend Sec.  35.130 by adding paragraph (h) to read as follows:


Sec.  35.130  General prohibitions against discrimination.

* * * * *
* * * * *
    (h) A public entity may impose legitimate safety requirements 
necessary for the safe operation of its services, programs, or 
activities. However, the public entity must ensure that its safety 
requirements are based on actual risks, not on mere speculation, 
stereotypes, or generalizations about individuals with disabilities.

0
4. Amend Sec.  35.133 by adding paragraph (c) to read as follows:


Sec.  35.133  Maintenance of accessible features.

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

0
5. Add Sec.  35.136 to read as follows:


Sec.  35.136  Service animals.

    (a) General. Generally, a public entity shall modify its policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.
    (b) Exceptions. A public entity may ask an individual with a 
disability to remove a service animal from the premises if--
    (1) The animal is out of control and the animal's handler does not 
take effective action to control it; or
    (2) The animal is not housebroken.
    (c) If an animal is properly excluded. If a public entity properly 
excludes a service animal under Sec.  35.136(b), it shall give the 
individual with a disability the opportunity to participate in the 
service, program, or activity without having the service animal on the 
premises.
    (d) Animal under handler's control. A service animal shall be under 
the control of its handler. A service animal shall have a harness, 
leash, or other tether, unless either the handler is unable because of 
a disability to use a harness, leash, or other tether, or the use of a 
harness, leash, or other tether would interfere with the service 
animal's safe, effective performance of work or tasks, in which case 
the service animal must be otherwise under the handler's control (e.g., 
voice control, signals, or other effective means).
    (e) Care or supervision. A public entity is not responsible for the 
care or supervision of a service animal.
    (f) Inquiries. A public entity shall not ask about the nature or 
extent of a person's disability, but may make two inquiries to 
determine whether an animal qualifies as a service animal. A public 
entity may ask if the animal is required because of a disability and 
what work or task the animal has been trained to perform. A public 
entity shall not require documentation, such as proof that the animal 
has been certified, trained, or licensed as a service animal. 
Generally, a public entity may not make these inquiries about a service 
animal when it is readily apparent that an animal is trained to do work 
or perform tasks for an individual with a disability (e.g., the dog is 
observed guiding an individual who is blind or has low vision, pulling 
a person's wheelchair, or providing assistance with stability or 
balance to an individual with an observable mobility disability).
    (g) Access to areas of a public entity. Individuals with 
disabilities shall be permitted to be accompanied by their service 
animals in all areas of a public entity's facilities where members of 
the public, participants in services, programs or activities, or 
invitees, as relevant, are allowed to go.
    (h) Surcharges. A public entity shall not ask or require an 
individual with a disability to pay a surcharge, even if people 
accompanied by pets are required to pay fees, or to comply with other 
requirements generally not applicable to people without pets. If a 
public entity normally charges individuals for the damage they cause, 
an individual with a disability may be charged for damage caused by his 
or her service animal.
    (i) Miniature horses. (1) Reasonable modifications. A public entity 
shall make reasonable modifications in policies, practices, or 
procedures to permit the use of a miniature horse by an individual with 
a disability if the miniature horse has been individually trained to do 
work or perform tasks for the benefit of the individual with a 
disability.
    (2) Assessment factors. In determining whether reasonable 
modifications in policies, practices, or procedures can be made to 
allow a miniature horse into a specific facility, a public entity shall 
consider--
    (i) The type, size, and weight of the miniature horse and whether 
the facility can accommodate these features;
    (ii) Whether the handler has sufficient control of the miniature 
horse;
    (iii) Whether the miniature horse is housebroken; and
    (iv) Whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for safe 
operation.
    (C) Other requirements. Paragraphs 35.136(c) through (h) of this 
section, which apply to service animals, shall also apply to miniature 
horses.

0
6. Add Sec.  35.137 to read as follows:


Sec.  35.137  Mobility devices.

    (a) Use of wheelchairs and manually-powered mobility aids. A public 
entity shall permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, such as walkers, 
crutches, canes, braces, or other similar devices designed for use by 
individuals with mobility disabilities, in any areas open to pedestrian 
use.
    (b)(1) Use of other power-driven mobility devices. A public entity 
shall make reasonable modifications in its policies, practices, or 
procedures to permit the use of other power-driven mobility devices by 
individuals with mobility disabilities, unless the public entity can 
demonstrate that the class of other power-driven mobility devices 
cannot be operated in accordance with legitimate safety requirements 
that the public entity has adopted pursuant to Sec.  35.130(h).
    (2) Assessment factors. In determining whether a particular other 
power-driven mobility device can be allowed in a specific facility as a 
reasonable modification under paragraph (b)(1) of this section, a 
public entity shall consider--
    (i) The type, size, weight, dimensions, and speed of the device;
    (ii) The facility's volume of pedestrian traffic (which may vary at 
different times of the day, week, month, or year);
    (iii) The facility's design and operational characteristics (e.g., 
whether its service, program, or activity is conducted indoors, its 
square footage, the density and placement of stationary devices, and 
the availability of storage for the device, if requested by the user);
    (iv) Whether legitimate safety requirements can be established to

[[Page 56179]]

permit the safe operation of the other power-driven mobility device in 
the specific facility; and
    (v) Whether the use of the other power-driven mobility device 
creates a substantial risk of serious harm to the immediate environment 
or natural or cultural resources, or poses a conflict with Federal land 
management laws and regulations.
    (c)(1) Inquiry about disability. A public entity shall not ask an 
individual using a wheelchair or other power-driven mobility device 
questions about the nature and extent of the individual's disability.
    (2) Inquiry into use of other power-driven mobility device. A 
public entity may ask a person using an other power-driven mobility 
device to provide a credible assurance that the mobility device is 
required because of the person's disability. A public entity that 
permits the use of an other power-driven mobility device by an 
individual with a mobility disability shall accept the presentation of 
a valid, State-issued, disability parking placard or card, or other 
State-issued proof of disability as a credible assurance that the use 
of the other power-driven mobility device is for the individual's 
mobility disability. In lieu of a valid, State-issued disability 
parking placard or card, or State-issued proof of disability, a public 
entity shall accept as a credible assurance a verbal representation, 
not contradicted by observable fact, that the other power-driven 
mobility device is being used for a mobility disability. A ``valid'' 
disability placard or card is one that is presented by the individual 
to whom it was issued and is otherwise in compliance with the State of 
issuance's requirements for disability placards or cards.

0
7. Add Sec.  35.138 to read as follows:


Sec.  35.138  Ticketing.

    (a)(1) For the purposes of this section, ``accessible seating'' is 
defined as wheelchair spaces and companion seats that comply with 
sections 221 and 802 of the 2010 Standards along with any other seats 
required to be offered for sale to the individual with a disability 
pursuant to paragraph (d) of this section.
    (2) Ticket sales. A public entity that sells tickets for a single 
event or series of events shall modify its policies, practices, or 
procedures to ensure that individuals with disabilities have an equal 
opportunity to purchase tickets for accessible seating--
    (i) During the same hours;
    (ii) During the same stages of ticket sales, including, but not 
limited to, pre-sales, promotions, lotteries, wait-lists, and general 
sales;
    (iii) Through the same methods of distribution;
    (iv) In the same types and numbers of ticketing sales outlets, 
including telephone service, in-person ticket sales at the facility, or 
third-party ticketing services, as other patrons; and
    (v) Under the same terms and conditions as other tickets sold for 
the same event or series of events.
    (b) Identification of available accessible seating. A public entity 
that sells or distributes tickets for a single event or series of 
events shall, upon inquiry--
    (1) Inform individuals with disabilities, their companions, and 
third parties purchasing tickets for accessible seating on behalf of 
individuals with disabilities of the locations of all unsold or 
otherwise available accessible seating for any ticketed event or events 
at the facility;
    (2) Identify and describe the features of available accessible 
seating in enough detail to reasonably permit an individual with a 
disability to assess independently whether a given accessible seating 
location meets his or her accessibility needs; and
    (3) Provide materials, such as seating maps, plans, brochures, 
pricing charts, or other information, that identify accessible seating 
and information relevant thereto with the same text or visual 
representations as other seats, if such materials are provided to the 
general public.
    (c) Ticket prices. The price of tickets for accessible seating for 
a single event or series of events shall not be set higher than the 
price for other tickets in the same seating section for the same event 
or series of events. Tickets for accessible seating must be made 
available at all price levels for every event or series of events. If 
tickets for accessible seating at a particular price level are not 
available because of inaccessible features, then the percentage of 
tickets for accessible seating that should have been available at that 
price level (determined by the ratio of the total number of tickets at 
that price level to the total number of tickets in the assembly area) 
shall be offered for purchase, at that price level, in a nearby or 
similar accessible location.
    (d) Purchasing multiple tickets. (1) General. For each ticket for a 
wheelchair space purchased by an individual with a disability or a 
third-party purchasing such a ticket at his or her request, a public 
entity shall make available for purchase three additional tickets for 
seats in the same row that are contiguous with the wheelchair space, 
provided that at the time of purchase there are three such seats 
available. A public entity is not required to provide more than three 
contiguous seats for each wheelchair space. Such seats may include 
wheelchair spaces.
    (2) Insufficient additional contiguous seats available. If patrons 
are allowed to purchase at least four tickets, and there are fewer than 
three such additional contiguous seat tickets available for purchase, a 
public entity shall offer the next highest number of such seat tickets 
available for purchase and shall make up the difference by offering 
tickets for sale for seats that are as close as possible to the 
accessible seats.
    (3) Sales limited to less than four tickets. If a public entity 
limits sales of tickets to fewer than four seats per patron, then the 
public entity is only obligated to offer as many seats to patrons with 
disabilities, including the ticket for the wheelchair space, as it 
would offer to patrons without disabilities.
    (4) Maximum number of tickets patrons may purchase exceeds four. If 
patrons are allowed to purchase more than four tickets, a public entity 
shall allow patrons with disabilities to purchase up to the same number 
of tickets, including the ticket for the wheelchair space.
    (5) Group sales. If a group includes one or more individuals who 
need to use accessible seating because of a mobility disability or 
because their disability requires the use of the accessible features 
that are provided in accessible seating, the group shall be placed in a 
seating area with accessible seating so that, if possible, the group 
can sit together. If it is necessary to divide the group, it should be 
divided so that the individuals in the group who use wheelchairs are 
not isolated from their group.
    (e) Hold-and-release of tickets for accessible seating. (1) Tickets 
for accessible seating may be released for sale in certain limited 
circumstances. A public entity may release unsold tickets for 
accessible seating for sale to individuals without disabilities for 
their own use for a single event or series of events only under the 
following circumstances--
    (i) When all non-accessible tickets (excluding luxury boxes, club 
boxes, or suites) have been sold;
    (ii) When all non-accessible tickets in a designated seating area 
have been sold and the tickets for accessible seating are being 
released in the same designated area; or
    (iii) When all non-accessible tickets in a designated price 
category have been sold and the tickets for accessible seating are 
being released within the same designated price category.

[[Page 56180]]

    (2) No requirement to release accessible tickets. Nothing in this 
paragraph requires a facility to release tickets for accessible seating 
to individuals without disabilities for their own use.
    (3) Release of series-of-events tickets on a series-of-events 
basis. (i) Series-of-events tickets sell-out when no ownership rights 
are attached. When series-of-events tickets are sold out and a public 
entity releases and sells accessible seating to individuals without 
disabilities for a series of events, the public entity shall establish 
a process that prevents the automatic reassignment of the accessible 
seating to such ticket holders for future seasons, future years, or 
future series so that individuals with disabilities who require the 
features of accessible seating and who become newly eligible to 
purchase tickets when these series-of-events tickets are available for 
purchase have an opportunity to do so.
    (ii) Series-of-events tickets when ownership rights are attached. 
When series-of-events tickets with an ownership right in accessible 
seating areas are forfeited or otherwise returned to a public entity, 
the public entity shall make reasonable modifications in its policies, 
practices, or procedures to afford individuals with mobility 
disabilities or individuals with disabilities that require the features 
of accessible seating an opportunity to purchase such tickets in 
accessible seating areas.
    (f) Ticket transfer. Individuals with disabilities who hold tickets 
for accessible seating shall be permitted to transfer tickets to third 
parties under the same terms and conditions and to the same extent as 
other spectators holding the same type of tickets, whether they are for 
a single event or series of events.
    (g) Secondary ticket market. (1) A public entity shall modify its 
policies, practices, or procedures to ensure that an individual with a 
disability may use a ticket acquired in the secondary ticket market 
under the same terms and conditions as other individuals who hold a 
ticket acquired in the secondary ticket market for the same event or 
series of events.
    (2) If an individual with a disability acquires a ticket or series 
of tickets to an inaccessible seat through the secondary market, a 
public entity shall make reasonable modifications to its policies, 
practices, or procedures to allow the individual to exchange his ticket 
for one to an accessible seat in a comparable location if accessible 
seating is vacant at the time the individual presents the ticket to the 
public entity.
    (h) Prevention of fraud in purchase of tickets for accessible 
seating. A public entity may not require proof of disability, 
including, for example, a doctor's note, before selling tickets for 
accessible seating.
    (1) Single-event tickets. For the sale of single-event tickets, it 
is permissible to inquire whether the individual purchasing the tickets 
for accessible seating has a mobility disability or a disability that 
requires the use of the accessible features that are provided in 
accessible seating, or is purchasing the tickets for an individual who 
has a mobility disability or a disability that requires the use of the 
accessible features that are provided in the accessible seating.
    (2) Series-of-events tickets. For series-of-events tickets, it is 
permissible to ask the individual purchasing the tickets for accessible 
seating to attest in writing that the accessible seating is for a 
person who has a mobility disability or a disability that requires the 
use of the accessible features that are provided in the accessible 
seating.
    (3) Investigation of fraud. A public entity may investigate the 
potential misuse of accessible seating where there is good cause to 
believe that such seating has been purchased fraudulently.

0
8. Add Sec.  35.139 to read as follows:


Sec.  35.139  Direct threat.

    (a) This part does not require a public entity to permit an 
individual to participate in or benefit from the services, programs, or 
activities of that public entity when that individual poses a direct 
threat to the health or safety of others.
    (b) In determining whether an individual poses a direct threat to 
the health or safety of others, a public entity must make an 
individualized assessment, based on reasonable judgment that relies on 
current medical knowledge or on the best available objective evidence, 
to ascertain: the nature, duration, and severity of the risk; the 
probability that the potential injury will actually occur; and whether 
reasonable modifications of policies, practices, or procedures or the 
provision of auxiliary aids or services will mitigate the risk.

Subpart D--Program Accessibility

0
9. Amend Sec.  35.150 as follows--
0
a. Redesignate paragraph (b)(2) as paragraph (b)(3),
0
b. Add the words ``or acquisition'' after the word ``redesign'' in the 
first sentence of paragraph (b)(1) and add new paragraph (b)(2) to read 
as follows:


Sec.  35.150  Existing facilities.

* * * * *
    (b) * * *
    (2)(i) Safe harbor. Elements that have not been altered in existing 
facilities on or after March 15, 2012 and that comply with the 
corresponding technical and scoping specifications for those elements 
in either the 1991 Standards or in the Uniform Federal Accessibility 
Standards (UFAS), Appendix A to 41 CFR part 101-19.6 (July 1, 2002 
ed.), 49 FR 31528, app. A (Aug. 7, 1984) are not required to be 
modified in order to comply with the requirements set forth in the 2010 
Standards.
    (ii) The safe harbor provided in Sec.  35.150(b)(2)(i) does not 
apply to those elements in existing facilities that are subject to 
supplemental requirements (i.e., elements for which there are neither 
technical nor scoping specifications in the 1991 Standards). Elements 
in the 2010 Standards not eligible for the element-by-element safe 
harbor are identified as follows--
    (A) Residential facilities dwelling units, sections 233 and 809.
    (B) Amusement rides, sections 234 and 1002; 206.2.9; 216.12.
    (C) Recreational boating facilities, sections 235 and 1003; 
206.2.10.
    (D) Exercise machines and equipment, sections 236 and 1004; 
206.2.13.
    (E) Fishing piers and platforms, sections 237 and 1005; 206.2.14.
    (F) Golf facilities, sections 238 and 1006; 206.2.15.
    (G) Miniature golf facilities, sections 239 and 1007; 206.2.16.
    (H) Play areas, sections 240 and 1008; 206.2.17.
    (I) Saunas and steam rooms, sections 241 and 612.
    (J) Swimming pools, wading pools, and spas, sections 242 and 1009.
    (K) Shooting facilities with firing positions, sections 243 and 
1010.
    (L) Miscellaneous.
    (1) Team or player seating, section 221.2.1.4.
    (2) Accessible route to bowling lanes, section 206.2.11.
    (3) Accessible route in court sports facilities, section 206.2.12.
* * * * *

0
10. Amend Sec.  35.151 as follows--
    a. Revise paragraphs (a) through (d),
    b. Revise the heading of paragraph (c),
    c. Redesignate paragraph (e) as paragraph (i), and
    d. Add paragraphs (e), (f), (g), (h), (j), and (k), to read as 
follows:


Sec.  35.151  New construction and alterations.

    (a) Design and construction. (1) Each facility or part of a 
facility constructed

[[Page 56181]]

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.
    (2) Exception for structural impracticability. (i) 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.
    (ii) 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.
    (iii) 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.
    (b) Alterations. (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) The path of travel requirements of Sec.  35.151(b)(4) shall 
apply only to alterations undertaken solely for purposes other than to 
meet the program accessibility requirements of Sec.  35.150.
    (3)(i) Alterations to historic properties shall comply, to the 
maximum extent feasible, with the provisions applicable to historic 
properties in the design standards specified in Sec.  35.151(c).
    (ii) If 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.
    (4) Path of travel. 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.
    (i) 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 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 entity using 
the facility are carried out.
    (A) 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 a 
primary purpose of the area, e.g., in highway rest stops.
    (B) 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.
    (ii) 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.
    (A) 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.
    (B) For the purposes of this section, the term ``path of travel'' 
also includes the restrooms, telephones, and drinking fountains serving 
the altered area.
    (C) Safe harbor. If a public entity has constructed or altered 
required elements of a path of travel in accordance with the 
specifications in either the 1991 Standards or the Uniform Federal 
Accessibility Standards before March 15, 2012, the public entity is not 
required to retrofit such elements to reflect incremental changes in 
the 2010 Standards solely because of an alteration to a primary 
function area served by that path of travel.
    (iii) Disproportionality. (A) 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.
    (B) Costs that may be counted as expenditures required to provide 
an accessible path of travel may include:
    (1) 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;
    (2) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (3) Costs associated with providing accessible telephones, such as 
relocating the telephone to an accessible height, installing 
amplification devices, or installing a text telephone (TTY); and
    (4) Costs associated with relocating an inaccessible drinking 
fountain.
    (iv) Duty to provide accessible features in the event of 
disproportionality. (A) 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.
    (B) In choosing which accessible elements to provide, priority 
should be given to those elements that will provide the greatest 
access, in the following order--
    (1) An accessible entrance;
    (2) An accessible route to the altered area;
    (3) At least one accessible restroom for each sex or a single 
unisex restroom;
    (4) Accessible telephones;
    (5) Accessible drinking fountains; and
    (6) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (v) Series of smaller alterations. (A) 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.
    (B)(1) 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

[[Page 56182]]

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.
    (2) Only alterations undertaken on or after March 15, 2011 shall be 
considered in determining if the cost of providing an accessible path 
of travel is disproportionate to the overall cost of the alterations.
    (c) Accessibility standards and compliance date. (1) If physical 
construction or alterations commence after July 26, 1992, but prior to 
the September 15, 2010, then new construction and alterations subject 
to this section must comply with either UFAS or the 1991 Standards 
except that the elevator exemption contained at section 4.1.3(5) and 
section 4.1.6(1)(k) of the 1991 Standards shall not apply. Departures 
from particular requirements of either standard by the use of other 
methods shall be permitted when it is clearly evident that equivalent 
access to the facility or part of the facility is thereby provided.
    (2) If physical construction or alterations commence on or after 
September 15, 2010 and before March 15, 2012, then new construction and 
alterations subject to this section may comply with one of the 
following: The 2010 Standards, UFAS, or the 1991 Standards except that 
the elevator exemption contained at section 4.1.3(5) and section 
4.1.6(1)(k) of the 1991 Standards shall not apply. Departures from 
particular requirements of either standard by the use of other methods 
shall be permitted when it is clearly evident that equivalent access to 
the facility or part of the facility is thereby provided.
    (3) If physical construction or alterations commence on or after 
March 15, 2012, then new construction and alterations subject to this 
section shall comply with the 2010 Standards.
    (4) For the purposes of this section, ceremonial groundbreaking or 
razing of structures prior to site preparation do not commence physical 
construction or alterations.
    (5) Noncomplying new construction and alterations. (i) Newly 
constructed or altered facilities or elements covered by Sec. Sec.  
35.151(a) or (b) that were constructed or altered before March 15, 
2012, and that do not comply with the 1991 Standards or with UFAS shall 
before March 15, 2012, be made accessible in accordance with either the 
1991 Standards, UFAS, or the 2010 Standards.
    (ii) Newly constructed or altered facilities or elements covered by 
Sec. Sec.  35.151(a) or (b) that were constructed or altered before 
March 15, 2012 and that do not comply with the 1991 Standards or with 
UFAS shall, on or after March 15, 2012, be made accessible in 
accordance with the 2010 Standards.

                      Appendix to Sec.   35.151(c)
------------------------------------------------------------------------
 Compliance dates for new construction and
                alterations                     Applicable standards
------------------------------------------------------------------------
Before September 15, 2010.................  1991 Standards or UFAS.
On or after September 15, 2010 and before   1991 Standards, UFAS, or
 March 15, 2012.                             2010 Standards.
On or after March 15, 2012................  2010 Standards.
------------------------------------------------------------------------

     (d) Scope of coverage. The 1991 Standards and the 2010 Standards 
apply to fixed or built-in elements of buildings, structures, site 
improvements, and pedestrian routes or vehicular ways located on a 
site. Unless specifically stated otherwise, the advisory notes, 
appendix notes, and figures contained in the 1991 Standards and the 
2010 Standards explain or illustrate the requirements of the rule; they 
do not establish enforceable requirements.
    (e) Social service center establishments. Group homes, halfway 
houses, shelters, or similar social service center establishments that 
provide either temporary sleeping accommodations or residential 
dwelling units that are subject to this section shall comply with the 
provisions of the 2010 Standards applicable to residential facilities, 
including, but not limited to, the provisions in sections 233 and 809.
    (1) In sleeping rooms with more than 25 beds covered by this 
section, a minimum of 5% of the beds shall have clear floor space 
complying with section 806.2.3 of the 2010 Standards.
    (2) Facilities with more than 50 beds covered by this section that 
provide common use bathing facilities shall provide at least one roll-
in shower with a seat that complies with the relevant provisions of 
section 608 of the 2010 Standards. Transfer-type showers are not 
permitted in lieu of a roll-in shower with a seat, and the exceptions 
in sections 608.3 and 608.4 for residential dwelling units are not 
permitted. When separate shower facilities are provided for men and for 
women, at least one roll-in shower shall be provided for each group.
    (f) Housing at a place of education. Housing at a place of 
education that is subject to this section shall comply with the 
provisions of the 2010 Standards applicable to transient lodging, 
including, but not limited to, the requirements for transient lodging 
guest rooms in sections 224 and 806 subject to the following 
exceptions. For the purposes of the application of this section, the 
term ``sleeping room'' is intended to be used interchangeably with the 
term ``guest room'' as it is used in the transient lodging standards.
    (1) Kitchens within housing units containing accessible sleeping 
rooms with mobility features (including suites and clustered sleeping 
rooms) or on floors containing accessible sleeping rooms with mobility 
features shall provide turning spaces that comply with section 809.2.2 
of the 2010 Standards and kitchen work surfaces that comply with 
section 804.3 of the 2010 Standards.
    (2) Multi-bedroom housing units containing accessible sleeping 
rooms with mobility features shall have an accessible route throughout 
the unit in accordance with section 809.2 of the 2010 Standards.
    (3) Apartments or townhouse facilities that are provided by or on 
behalf of a place of education, which are leased on a year-round basis 
exclusively to graduate students or faculty, and do not contain any 
public use or common use areas available for educational programming, 
are not subject to the transient lodging standards and shall comply 
with the requirements for residential facilities in sections 233 and 
809 of the 2010 Standards.
    (g) Assembly areas. Assembly areas subject to this section shall 
comply with the provisions of the 2010 Standards applicable to assembly 
areas, including, but not limited to, sections 221 and 802. In 
addition, assembly areas shall ensure that--
    (1) In stadiums, arenas, and grandstands, wheelchair spaces and 
companion seats are dispersed to all levels that include seating served 
by an accessible route;
    (2) Assembly areas that are required to horizontally disperse 
wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 
Standards and have seating encircling, in whole or in part, a field of 
play or performance area shall disperse wheelchair spaces and companion 
seats around that field of play or performance area;
    (3) Wheelchair spaces and companion seats are not located on (or 
obstructed by) temporary platforms or other movable structures, except 
that when an entire seating section is placed on temporary platforms or 
other movable structures in an area where fixed seating is not 
provided, in order to increase seating for an event, wheelchair spaces

[[Page 56183]]

and companion seats may be placed in that section. When wheelchair 
spaces and companion seats are not required to accommodate persons 
eligible for those spaces and seats, individual, removable seats may be 
placed in those spaces and seats;
    (4) Stadium-style movie theaters shall locate wheelchair spaces and 
companion seats on a riser or cross-aisle in the stadium section that 
satisfies at least one of the following criteria--
    (i) It is located within the rear 60% of the seats provided in an 
auditorium; or
    (ii) It is located within the area of an auditorium in which the 
vertical viewing angles (as measured to the top of the screen) are from 
the 40th to the 100th percentile of vertical viewing angles for all 
seats as ranked from the seats in the first row (1st percentile) to 
seats in the back row (100th percentile).
    (h) Medical care facilities. Medical care facilities that are 
subject to this section shall comply with the provisions of the 2010 
Standards applicable to medical care facilities, including, but not 
limited to, sections 223 and 805. In addition, medical care facilities 
that do not specialize in the treatment of conditions that affect 
mobility shall disperse the accessible patient bedrooms required by 
section 223.2.1 of the 2010 Standards in a manner that is proportionate 
by type of medical specialty.
* * * * *
    (j) Facilities with residential dwelling units for sale to 
individual owners. (1) Residential dwelling units designed and 
constructed or altered by public entities that will be offered for sale 
to individuals shall comply with the requirements for residential 
facilities in the 2010 Standards, including sections 233 and 809.
    (2) The requirements of paragraph (1) also apply to housing 
programs that are operated by public entities where design and 
construction of particular residential dwelling units take place only 
after a specific buyer has been identified. In such programs, the 
covered entity must provide the units that comply with the requirements 
for accessible features to those pre-identified buyers with 
disabilities who have requested such a unit.
    (k) Detention and correctional facilities. (1) New construction of 
jails, prisons, and other detention and correctional facilities shall 
comply with the 2010 Standards except that public entities shall 
provide accessible mobility features complying with section 807.2 of 
the 2010 Standards for a minimum of 3%, but no fewer than one, of the 
total number of cells in a facility. Cells with mobility features shall 
be provided in each classification level.
    (2) Alterations to detention and correctional facilities. 
Alterations to jails, prisons, and other detention and correctional 
facilities shall comply with the 2010 Standards except that public 
entities shall provide accessible mobility features complying with 
section 807.2 of the 2010 Standards for a minimum of 3%, but no fewer 
than one, of the total number of cells being altered until at least 3%, 
but no fewer than one, of the total number of cells in a facility shall 
provide mobility features complying with section 807.2. Altered cells 
with mobility features shall be provided in each classification level. 
However, when alterations are made to specific cells, detention and 
correctional facility operators may satisfy their obligation to provide 
the required number of cells with mobility features by providing the 
required mobility features in substitute cells (cells other than those 
where alterations are originally planned), provided that each 
substitute cell--
    (i) Is located within the same prison site;
    (ii) Is integrated with other cells to the maximum extent feasible;
    (iii) Has, at a minimum, equal physical access as the altered cells 
to areas used by inmates or detainees for visitation, dining, 
recreation, educational programs, medical services, work programs, 
religious services, and participation in other programs that the 
facility offers to inmates or detainees; and
    (iv) If it is technically infeasible to locate a substitute cell 
within the same prison site, a substitute cell must be provided at 
another prison site within the corrections system.
    (3) With respect to medical and long-term care facilities in jails, 
prisons, and other detention and correctional facilities, public 
entities shall apply the 2010 Standards technical and scoping 
requirements for those facilities irrespective of whether those 
facilities are licensed.

0
11. Add Sec.  35.152 to read as follows:


Sec.  35.152  Jails, detention and correctional facilities, and 
community correctional facilities.

    (a) General. This section applies to public entities that are 
responsible for the operation or management of adult and juvenile 
justice jails, detention and correctional facilities, and community 
correctional facilities, either directly or through contractual, 
licensing, or other arrangements with public or private entities, in 
whole or in part, including private correctional facilities.
    (b) Discrimination prohibited. (1) Public entities shall ensure 
that qualified inmates or detainees with disabilities shall not, 
because a facility is inaccessible to or unusable by individuals with 
disabilities, be excluded from participation in, or be denied the 
benefits of, the services, programs, or activities of a public entity, 
or be subjected to discrimination by any public entity.
    (2) Public entities shall ensure that inmates or detainees with 
disabilities are housed in the most integrated setting appropriate to 
the needs of the individuals. Unless it is appropriate to make an 
exception, a public entity--
    (i) Shall not place inmates or detainees with disabilities in 
inappropriate security classifications because no accessible cells or 
beds are available;
    (ii) Shall not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical 
care or treatment;
    (iii) Shall not place inmates or detainees with disabilities in 
facilities that do not offer the same programs as the facilities where 
they would otherwise be housed; and
    (iv) Shall not deprive inmates or detainees with disabilities of 
visitation with family members by placing them in distant facilities 
where they would not otherwise be housed.
    (3) Public entities shall implement reasonable policies, including 
physical modifications to additional cells in accordance with the 2010 
Standards, so as to ensure that each inmate with a disability is housed 
in a cell with the accessible elements necessary to afford the inmate 
access to safe, appropriate housing.

Subpart E--Communications

0
12. Amend Sec.  35.160 by revising paragraphs (a) and (b), and adding 
paragraphs (c) and (d) to read as follows:


Sec.  35.160  General.

    (a)(1) A public entity shall take appropriate steps to ensure that 
communications with applicants, participants, members of the public, 
and companions with disabilities are as effective as communications 
with others.
    (2) For purposes of this section, ``companion'' means a family 
member, friend, or associate of an individual seeking access to a 
service, program, or activity of a public entity, who, along with such 
individual, is an appropriate person with whom the public entity should 
communicate.

[[Page 56184]]

    (b)(1) A public entity shall furnish appropriate auxiliary aids and 
services where necessary to afford individuals with disabilities, 
including applicants, participants, companions, and members of the 
public, an equal opportunity to participate in, and enjoy the benefits 
of, a service, program, or activity of a public entity.
    (2) The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. In determining what types of auxiliary 
aids and services are necessary, a public entity shall give primary 
consideration to the requests of individuals with disabilities. In 
order to be effective, auxiliary aids and services must be provided in 
accessible formats, in a timely manner, and in such a way as to protect 
the privacy and independence of the individual with a disability.
    (c)(1) A public entity shall not require an individual with a 
disability to bring another individual to interpret for him or her.
    (2) A public entity shall not rely on an adult accompanying an 
individual with a disability to interpret or facilitate communication 
except--
    (i) In an emergency involving an imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available; or
    (ii) Where the individual with a disability specifically requests 
that the accompanying adult interpret or facilitate communication, the 
accompanying adult agrees to provide such assistance, and reliance on 
that adult for such assistance is appropriate under the circumstances.
    (3) A public entity shall not rely on a minor child to interpret or 
facilitate communication, except in an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available.
    (d) Video remote interpreting (VRI) services. A public entity that 
chooses to provide qualified interpreters via VRI services shall ensure 
that it provides--
    (1) Real-time, full-motion video and audio over a dedicated high-
speed, wide-bandwidth video connection or wireless connection that 
delivers high-quality video images that do not produce lags, choppy, 
blurry, or grainy images, or irregular pauses in communication;
    (2) A sharply delineated image that is large enough to display the 
interpreter's face, arms, hands, and fingers, and the participating 
individual's face, arms, hands, and fingers, regardless of his or her 
body position;
    (3) A clear, audible transmission of voices; and
    (4) Adequate training to users of the technology and other involved 
individuals so that they may quickly and efficiently set up and operate 
the VRI.

0
13. Revise Sec.  35.161 to read as follows:


Sec.  35.161  Telecommunications.

    (a) Where a public entity communicates by telephone with applicants 
and beneficiaries, text telephones (TTYs) or equally effective 
telecommunications systems shall be used to communicate with 
individuals who are deaf or hard of hearing or have speech impairments.
    (b) When a public entity uses an automated-attendant system, 
including, but not limited to, voicemail and messaging, or an 
interactive voice response system, for receiving and directing incoming 
telephone calls, that system must provide effective real-time 
communication with individuals using auxiliary aids and services, 
including TTYs and all forms of FCC-approved telecommunications relay 
systems, including Internet-based relay systems.
    (c) A public entity shall respond to telephone calls from a 
telecommunications relay service established under title IV of the ADA 
in the same manner that it responds to other telephone calls.

Subpart F--Compliance Procedures

0
14. Amend Sec.  35.171 by revising paragraph (a)(2) to read as follows:


Sec.  35.171  Acceptance of complaints.

    (a) * * *
    (2)(i) If an agency other than the Department of Justice determines 
that it does not have section 504 jurisdiction and is not the 
designated agency, it shall promptly refer the complaint to the 
appropriate designated agency, the agency that has section 504 
jurisdiction, or the Department of Justice, and so notify the 
complainant.
    (ii) When the Department of Justice receives a complaint for which 
it does not have jurisdiction under section 504 and is not the 
designated agency, it may exercise jurisdiction pursuant to Sec.  
35.190(e) or refer the complaint to an agency that does have 
jurisdiction under section 504 or to the appropriate agency designated 
in subpart G of this part or, in the case of an employment complaint 
that is also subject to title I of the Act, to the Equal Employment 
Opportunity Commission.
* * * * *

0
15. Revise Sec.  35.172 to read as follows:


Sec.  35.172  Investigations and compliance reviews.

    (a) The designated agency shall investigate complaints for which it 
is responsible under Sec.  35.171.
    (b) The designated agency may conduct compliance reviews of public 
entities in order to ascertain whether there has been a 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 and a violation is found, 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 (including 
compensatory damages where appropriate); and
    (3) Notice of the rights and procedures available under paragraph 
(d) of this section and Sec. Sec.  35.173 and 35.174.
    (d) At any time, the complainant may file a private suit pursuant 
to section 203 of the Act, 42 U.S.C. 12133, whether or not the 
designated agency finds a violation.

Subpart G--Designated Agencies

0
16. Amend Sec.  35.190 by adding paragraph (e) to read as follows:


Sec.  35.190  Designated Agencies.

* * * * *
    (e) When the Department receives a complaint directed to the 
Attorney General alleging a violation of this part that may fall within 
the jurisdiction of a designated agency or another Federal agency that 
may have jurisdiction under section 504, the Department may exercise 
its discretion to retain the complaint for investigation under this 
part.

0
17. Redesignate Appendix A to part 35 as Appendix B to part 35 and add 
Appendix A to read as follows:

Appendix A to Part 35--Guidance to Revisions to ADA Regulation on 
Nondiscrimination on the Basis of Disability in State and Local 
Government Services

    Note: This Appendix contains guidance providing a section-by-
section analysis of the revisions to 28 CFR part 35 published on 
September 15, 2010.


[[Page 56185]]



Section-By-Section Analysis and Response to Public Comments

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

Subpart A--General

Section 35.104 Definitions.

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

``2010 Standards''

    The Department has added to the final rule a definition of the 
term ``2010 Standards.'' The term ``2010 Standards'' refers to the 
2010 ADA Standards for Accessible Design, which consist of the 2004 
ADAAG and the requirements contained in Sec.  35.151.

``Auxiliary Aids and Services''

    In the NPRM, the Department proposed revisions to the definition 
of auxiliary aids and services under Sec.  35.104 to include several 
additional types of auxiliary aids that have become more readily 
available since the promulgation of the 1991 title II regulation, 
and in recognition of new technology and devices available in some 
places that may provide effective communication in some situations.
    The NPRM proposed adding an explicit reference to written notes 
in the definition of ``auxiliary aids.'' Although this policy was 
already enunciated in the Department's 1993 Title II Technical 
Assistance Manual at II-7.1000, the Department proposed inclusion in 
the regulation itself because some Title II entities do not 
understand that exchange of written notes using paper and pencil is 
an available option in some circumstances. See Department of 
Justice, The Americans with Disabilities Act, Title II Technical 
Assistance Manual Covering State and Local Government Programs and 
Services (1993), available at http://www.ada.gov/taman2.html. 
Comments from several disability advocacy organizations and 
individuals discouraged the Department from including the exchange 
of written notes in the list of available auxiliary aids in Sec.  
35.104. Advocates and persons with disabilities requested explicit 
limits on the use of written notes as a form of auxiliary aid 
because, they argue, most exchanges are not simple and are not 
communicated effectively using handwritten notes. One major advocacy 
organization, for example, noted that the speed at which individuals 
communicate orally or use sign language averages about 200 words per 
minute or more while exchange of notes often leads to truncated or 
incomplete communication. For persons whose primary language is 
American Sign Language (ASL), some commenters pointed out, using 
written English in exchange of notes often is ineffective because 
ASL syntax and vocabulary is dissimilar from English. By contrast, 
some commenters from professional medical associations sought more 
specific guidance on when notes are allowed, especially in the 
context of medical offices and health care situations.
    Exchange of notes likely will be effective in situations that do 
not involve substantial conversation, for example, blood work for 
routine lab tests or regular allergy shots. Video Interpreting 
Services (hereinafter referred to as ``video remote interpreting 
services'' or VRI) or an interpreter should be used when the matter 
involves greater complexity, such as in situations requiring 
communication of medical history or diagnoses, in conversations 
about medical procedures and treatment decisions, or when giving 
instructions for care at home or elsewhere. In the Section-By-
Section Analysis of Sec.  35.160 (Communications) below, the 
Department discusses in greater detail the kinds of situations in 
which interpreters or captioning would be necessary. Additional 
guidance on this issue can be found in a number of agreements 
entered into with health-care providers and hospitals that are 
available on the Department's Web site at http://www.ada.gov.
    In the NPRM, in paragraph (1) of the definition in Sec.  35.104, 
the Department proposed replacing the term ``telecommunications 
devices for deaf persons (TDD)'' with the term ``text telephones 
(TTYs).'' TTY has become the commonly accepted term and is 
consistent with the terminology used by the Access Board in the 2004 
ADAAG. Commenters representing advocates and persons with 
disabilities expressed approval of the substitution of TTY for TDD 
in the proposed regulation.
    Commenters also expressed the view that the Department should 
expand paragraph (1) of the definition of auxiliary aids to include 
``TTY's and other voice, text, and video-based telecommunications 
products and systems such as videophones and captioned telephones.'' 
The Department has considered these comments and has revised the 
definition of ``auxiliary aids'' to include references to voice, 
text, and video-based telecommunications products and systems, as 
well as accessible electronic and information technology.
    In the NPRM, the Department also proposed including a reference 
in paragraph (1) to a new technology, Video Interpreting Services 
(VIS). The reference remains in the final rule. VIS is discussed in 
the Section-By-Section Analysis below in reference to Sec.  35.160 
(Communications), but is referred to as VRI in both the final rule 
and Appendix A to more accurately reflect the terminology used in 
other regulations and among users of the technology.
    In the NPRM, the Department noted that technological advances in 
the 18 years since the ADA's enactment had increased the range of 
auxiliary aids and services for those who are blind or have low 
vision. As a result the Department proposed additional examples to 
paragraph (2) of the definition, including Brailled materials and 
displays, screen reader software, optical readers, secondary 
auditory programs (SAP), and accessible electronic and information 
technology. Some commenters asked for more detailed requirements for 
auxiliary aids for persons with vision disabilities. The Department 
has decided it will not make additional changes to that provision at 
this time.
    Several comments suggested expanding the auxiliary aids 
provision for persons who are both deaf and blind, and in 
particular, to include in the list of auxiliary aids a new category, 
``support service providers (SSP),'' which was described in comments 
as a navigator and communication facilitator. The Department 
believes that services provided by communication facilitators are 
already encompassed in the requirement to provide qualified 
interpreters. Moreover, the Department is concerned that as 
described by the commenters, the category of support service 
providers would include some services that would be considered 
personal services and that do not qualify as auxiliary aids. 
Accordingly, the Department declines to add this new category to the 
list at this time.
    Some commenters representing advocacy organizations and 
individuals asked the Department to explicitly require title II 
entities to make any or all of the devices or technology available 
in all situations upon the request of the person with a disability. 
The Department recognizes that such devices or technology may 
provide effective communication and in some circumstances may be 
effective for some persons, but the Department does not intend to 
require that every entity covered by title II provide every device 
or all new technology at all times as long as the communication that 
is provided is as effective as communication with others. The 
Department recognized in the preamble to the 1991 title II 
regulation that the list of auxiliary aids was ``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 an attempt to do so would omit the new devices that will become 
available with emerging technology.'' 28 CFR part 35, app. A at 560 
(2009). The Department continues to endorse that view; thus, the 
inclusion of a list of examples of possible auxiliary aids in the 
definition of ``auxiliary aids'' should not be read as a mandate for 
a title II entity to offer every possible auxiliary aid listed in 
the definition in every situation.

``Direct Threat''

    In Appendix A of the Department's 1991 title II regulation, the 
Department included a detailed discussion of ``direct threat'' that, 
among other things, explained that ``the

[[Page 56186]]

principles established in Sec.  36.208 of the Department's [title 
III] regulation'' were ``applicable'' as well to title II, insofar 
as ``questions of safety are involved.'' 28 CFR part 35, app. A at 
565 (2009). In the final rule, the Department has included an 
explicit definition of ``direct threat'' that is parallel to the 
definition in the title III rule and placed it in the definitions 
section at Sec.  35.104.

``Existing Facility''

    The 1991 title II regulation provided definitions for ``new 
construction'' at Sec.  35.151(a) and ``alterations'' at Sec.  
35.151(b). In contrast, the term ``existing facility'' was not 
explicitly defined, although it is used in the statute and 
regulations for title II. See 42 U.S.C. 12134(b); 28 CFR 35.150. It 
has been the Department's view that newly constructed or altered 
facilities are also existing facilities with continuing program 
access obligations, and that view is made explicit in this rule.
    The classification of facilities under the ADA is neither static 
nor mutually exclusive. Newly constructed or altered facilities are 
also existing facilities. A newly constructed facility remains 
subject to the accessibility standards in effect at the time of 
design and construction, with respect to those elements for which, 
at that time, there were applicable ADA Standards. And at some 
point, the facility may undergo alterations, which are subject to 
the alterations requirements in effect at the time. See Sec.  
35.151(b)-(c). The fact that the facility is also an existing 
facility does not relieve the public entity of its obligations under 
the new construction and alterations requirements in this part.
    For example, a facility constructed or altered after the 
effective date of the original title II regulations but prior to the 
effective date of the revised title II regulation and Standards, 
must have been built or altered in compliance with the Standards (or 
UFAS) in effect at that time, in order to be in compliance with the 
ADA. In addition, a ``newly constructed'' facility or ``altered'' 
facility is also an ``existing facility'' for purposes of 
application of the title II program accessibility requirements. Once 
the 2010 Standards take effect, they will become the new reference 
point for determining the program accessibility obligations of all 
existing facilities. This is because the ADA contemplates that as 
our knowledge and understanding of accessibility advances and 
evolves, this knowledge will be incorporated into and result in 
increased accessibility in the built environment. Under title II, 
this goal is accomplished through the statute's program access 
framework. While newly constructed or altered facilities must meet 
the accessibility standards in effect at the time, the fact that 
these facilities are also existing facilities ensures that the 
determination of whether a program is accessible is not frozen at 
the time of construction or alteration. Program access may require 
consideration of potential barriers to access that were not 
recognized as such at the time of construction or alteration, 
including, but not limited to, the elements that are first covered 
in the 2010 Standards, as that term is defined in Sec.  35.104. 
Adoption of the 2010 Standards establishes a new reference point for 
title II entities that choose to make structural changes to existing 
facilities to meet their program access requirements.
    The NPRM included the following proposed definition of 
``existing facility.'' ``A facility that has been constructed and 
remains in existence on any given date.'' 73 FR 34466, 34504 (June 
17, 2008). The Department received a number of comments on this 
issue. The commenters urged the Department to clarify that all 
buildings remain subject to the standards in effect at the time of 
their construction, that is, that a facility designed and 
constructed for first occupancy between January 26, 1992, and the 
effective date of the final rule is still considered ``new 
construction'' and that alterations occurring between January 26, 
1992, and the effective date of the final rule are still considered 
``alterations.''
    The final rule includes clarifying language to ensure that the 
Department's interpretation is accurately reflected. As established 
by this rule, existing facility means a facility in existence on any 
given date, without regard to whether the facility may also be 
considered newly constructed or altered under this part. Thus, this 
definition reflects the Department's interpretation that public 
entities have program access requirements that are independent of, 
but may coexist with, requirements imposed by new construction or 
alteration requirements in those same facilities.

``Housing at a Place of Education''

    The Department has added a new definition to Sec.  35.104, 
``housing at a place of education,'' to clarify the types of 
educational housing programs that are covered by this title. This 
section defines ``housing at a place of education'' as ``housing 
operated by or on behalf of an elementary, secondary, undergraduate, 
or postgraduate school, or other place of education, including 
dormitories, suites, apartments, or other places of residence.'' 
This definition does not apply to social service programs that 
combine residential housing with social services, such as a 
residential job training program.

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

    Because relatively few individuals with disabilities were using 
nontraditional mobility devices in 1991, there was no pressing need 
for the 1991 title II regulation to define the terms ``wheelchair'' 
or ``other power-driven mobility device,'' to expound on what would 
constitute a reasonable modification in policies, practices, or 
procedures under Sec.  35.130(b)(7), or to set forth within that 
section specific requirements for the accommodation of mobility 
devices. Since the issuance of the 1991 title II regulation, 
however, the choices of mobility devices available to individuals 
with disabilities have increased dramatically. The Department has 
received complaints about and has become aware of situations where 
individuals with mobility disabilities have utilized devices that 
are not designed primarily for use by an individual with a mobility 
disability, including the Segway [supreg] Personal Transporter 
(Segway [supreg] PT), golf cars, all-terrain vehicles (ATVs), and 
other locomotion devices.
    The Department also has received questions from public entities 
and individuals with mobility disabilities concerning which mobility 
devices must be accommodated and under what circumstances. Indeed, 
there has been litigation concerning the legal obligations of 
covered entities to accommodate individuals with mobility 
disabilities who wish to use an electronic personal assistance 
mobility device (EPAMD), such as the Segway [supreg] PT, as a 
mobility device. The Department has participated in such litigation 
as amicus curiae. See Ault v. Walt Disney World Co., No. 6:07-cv-
1785-Orl-31KRS, 2009 WL 3242028 (M.D. Fla. Oct. 6, 2009). Much of 
the litigation has involved shopping malls where businesses have 
refused to allow persons with disabilities to use EPAMDs. See, e.g., 
McElroy v. Simon Property Group, No. 08-404 RDR, 2008 WL 4277716 (D. 
Kan. Sept. 15, 2008) (enjoining mall from prohibiting the use of a 
Segway [supreg] PT as a mobility device where an individual agrees 
to all of a mall's policies for use of the device, except 
indemnification); Shasta Clark, Local Man Fighting Mall Over Right 
to Use Segway, WATE 6 News, July 26, 2005, available at http://www.wate.com/Global/story.asp?s=3643674 (last visited June 24, 
2010).
    In response to questions and complaints from individuals with 
disabilities and covered entities concerning which mobility devices 
must be accommodated and under what circumstances, the Department 
began developing a framework to address the use of unique mobility 
devices, concerns about their safety, and the parameters for the 
circumstances under which these devices must be accommodated. As a 
result, the Department's NPRM proposed two new approaches to 
mobility devices. First, the Department proposed a two-tiered 
mobility device definition that defined the term ``wheelchair'' 
separately from ``other power-driven mobility device.'' Second, the 
Department proposed requirements to allow the use of devices in each 
definitional category. In Sec.  35.137(a), the NPRM proposed that 
wheelchairs and manually-powered mobility aids used by individuals 
with mobility disabilities shall be permitted in any areas open to 
pedestrian use. Section 35.137(b) of the NPRM provided that a public 
entity ``shall make reasonable modifications in its policies, 
practices, and procedures to permit the use of other power-driven 
mobility devices by individuals with disabilities, unless the public 
entity can demonstrate that the use of the device is not reasonable 
or that its use will result in a fundamental alteration of the 
public entity's service, program, or activity.'' 73 FR 34466, 34504 
(June 17, 2008).
    The Department sought public comment with regard to whether 
these steps would, in fact, achieve clarity on these issues. Toward 
this end, the Department's NPRM asked several questions relating to 
the definitions of ``wheelchair,'' ``other power-driven mobility 
device,'' and ``manually-powered mobility aids''; the best way to 
categorize different classes of mobility devices; the types of 
devices that should be included in each category; and the 
circumstances under which

[[Page 56187]]

certain mobility devices must be accommodated or may be excluded 
pursuant to the policy adopted by the public entity.
    Because the questions in the NPRM that concerned mobility 
devices and their accommodation were interrelated, many of the 
commenters' responses did not identify the specific question to 
which they were responding. Instead, the commenters grouped the 
questions together and provided comments accordingly. Most 
commenters spoke to the issues addressed in the Department's 
questions in broad terms and general concepts. As a result, the 
responses to the questions posed are discussed below in broadly 
grouped issue categories rather than on a question-by-question 
basis.
    Two-tiered definitional approach. Commenters supported the 
Department's proposal to use a two-tiered definition of mobility 
device. Commenters nearly universally said that wheelchairs always 
should be accommodated and that they should never be subject to an 
assessment with regard to their admission to a particular public 
facility. In contrast, the vast majority of commenters indicated 
they were in favor of allowing public entities to conduct an 
assessment as to whether, and under which circumstances, other 
power-driven mobility devices would be allowed on-site.
    Many commenters indicated their support for the two-tiered 
approach in responding to questions concerning the definition of 
``wheelchair'' and ``other-powered mobility device.'' Nearly every 
disability advocacy group said that the Department's two-tiered 
approach strikes the proper balance between ensuring access for 
individuals with disabilities and addressing fundamental alteration 
and safety concerns held by public entities; however, a minority of 
disability advocacy groups wanted other power-driven mobility 
devices to be included in the definition of ``wheelchair.'' Most 
advocacy, nonprofit, and individual commenters supported the concept 
of a separate definition for ``other power-driven mobility device'' 
because it maintains existing legal protections for wheelchairs 
while recognizing that some devices that are not designed primarily 
for individuals with mobility disabilities have beneficial uses for 
individuals with mobility disabilities. They also favored this 
concept because it recognizes technological developments and that 
the innovative uses of varying devices may provide increased access 
to individuals with mobility disabilities.
    Many environmental, transit system, and government commenters 
indicated they opposed in its entirety the concept of ``other power-
driven mobility devices'' as a separate category. They believe that 
the creation of a second category of mobility devices will mean that 
other power-driven mobility devices, specifically ATVs and off-
highway vehicles, must be allowed to go anywhere on national park 
lands, trails, recreational areas, etc.; will conflict with other 
Federal land management laws and regulations; will harm the 
environment and natural and cultural resources; will pose safety 
risks to users of these devices, as well as to pedestrians not 
expecting to encounter motorized devices in these settings; will 
interfere with the recreational enjoyment of these areas; and will 
require too much administrative work to regulate which devices are 
allowed and under which circumstances. These commenters all 
advocated a single category of mobility devices that excludes all 
fuel-powered devices.
    Whether or not they were opposed to the two-tier approach in its 
entirety, virtually every environmental commenter and most 
government commenters associated with providing public 
transportation services or protecting land, natural resources, fish 
and game, etc., said that the definition of ``other power-driven 
mobility device'' is too broad. They suggested that they might be 
able to support the dual category approach if the definition of 
``other power-driven mobility device'' were narrowed. They expressed 
general and program-specific concerns about permitting the use of 
other power-driven mobility devices. They noted the same concerns as 
those who opposed the two-tiered concept--that these devices create 
a host of environmental, safety, cost, administrative and conflict 
of law issues. Virtually all of these commenters indicated that 
their support for the dual approach and the concept of other power-
driven mobility devices is, in large measure, due to the other 
power-driven mobility device assessment factors in Sec.  35.137(c) 
of the NPRM.
    By maintaining the two-tiered approach to mobility devices and 
defining ``wheelchair'' separately from ``other power-driven 
mobility device,'' the Department is able to preserve the protection 
users of traditional wheelchairs and other manually powered mobility 
aids have had since the ADA was enacted, while also recognizing that 
human ingenuity, personal choice, and new technologies have led to 
the use of devices that may be more beneficial for individuals with 
certain mobility disabilities.
    Moreover, the Department believes the two-tiered approach gives 
public entities guidance to follow in assessing whether reasonable 
modifications can be made to permit the use of other power-driven 
mobility devices on-site and to aid in the development of policies 
describing the circumstances under which persons with disabilities 
may use such devices. The two-tiered approach neither mandates that 
all other power-driven mobility devices be accommodated in every 
circumstance, nor excludes these devices. This approach, in 
conjunction with the factor assessment provisions in Sec.  
35.137(b)(2), will serve as a mechanism by which public entities can 
evaluate their ability to accommodate other power-driven mobility 
devices. As will be discussed in more detail below, the assessment 
factors in Sec.  35.137(b)(2) are designed to provide guidance to 
public entities regarding whether it is appropriate to bar the use 
of a specific ``other power-driven mobility device in a specific 
facility. In making such a determination, a public entity must 
consider the device's type, size, weight, dimensions, and speed; the 
facility's volume of pedestrian traffic; the facility's design and 
operational characteristics; whether the device conflicts with 
legitimate safety requirements; and whether the device poses a 
substantial risk of serious harm to the immediate environment or 
natural or cultural resources, or conflicts with Federal land 
management laws or regulations. In addition, if under Sec.  
35.130(b)(7), the public entity claims that it cannot make 
reasonable modifications to its policies, practices, or procedures 
to permit the use of other power-driven mobility devices by 
individuals with disabilities, the burden of proof to demonstrate 
that such devices cannot be operated in accordance with legitimate 
safety requirements rests upon the public entity.
    Categorization of wheelchair versus other power-driven mobility 
devices. Implicit in the creation of the two-tiered mobility device 
concept is the question of how to categorize which devices are 
wheelchairs and which are other power-driven mobility devices. 
Finding weight and size to be too restrictive, the vast majority of 
advocacy, nonprofit, and individual commenters opposed using the 
Department of Transportation's definition of ``common wheelchair'' 
to designate the mobility device's appropriate category. Commenters 
who generally supported using weight and size as the method of 
categorization did so because of their concerns about potentially 
detrimental impacts on the environment and cultural and natural 
resources; on the enjoyment of the facility by other recreational 
users, as well as their safety; on the administrative components of 
government agencies required to assess which devices are appropriate 
on narrow, steeply sloped, or foot-and-hoof only trails; and about 
the impracticality of accommodating such devices in public 
transportation settings.
    Many environmental, transit system, and government commenters 
also favored using the device's intended-use to categorize which 
devices constitute wheelchairs and which are other power-driven 
mobility devices. Furthermore, the intended-use determinant received 
a fair amount of support from advocacy, nonprofit, and individual 
commenters, either because they sought to preserve the broad 
accommodation of wheelchairs or because they sympathized with 
concerns about individuals without mobility disabilities 
fraudulently bringing other power-driven mobility devices into 
public facilities.
    Commenters seeking to have the Segway[supreg] PT included in the 
definition of ``wheelchair'' objected to classifying mobility 
devices on the basis of their intended use because they felt that 
such a classification would be unfair and prejudicial to 
Segway[supreg] PT users and would stifle personal choice, 
creativity, and innovation. Other advocacy and nonprofit commenters 
objected to employing an intended-use approach because of concerns 
that the focus would shift to an assessment of the device, rather 
than the needs or benefits to the individual with the mobility 
disability. They were of the view that the mobility-device 
classification should be based on its function--whether it is used 
for a mobility disability. A few commenters raised the concern that 
an intended-use approach might embolden public entities to assess 
whether an individual with a mobility disability really needs to use 
the other power-driven mobility device at issue or to question why a 
wheelchair would not

[[Page 56188]]

provide sufficient mobility. Those citing objections to the intended 
use determinant indicated it would be more appropriate to make the 
categorization determination based on whether the device is being 
used for a mobility disability in the context of the impact of its 
use in a specific environment. Some of these commenters preferred 
this approach because it would allow the Segway[supreg] PT to be 
included in the definition of ``wheelchair.''
    Many environmental and government commenters were inclined to 
categorize mobility devices by the way in which they are powered, 
such as battery-powered engines versus fuel or combustion engines. 
One commenter suggested using exhaust level as the determinant. 
Although there were only a few commenters who would make the 
determination based on indoor or outdoor use, there was nearly 
universal support for banning the indoor use of devices that are 
powered by fuel or combustion engines.
    A few commenters thought it would be appropriate to categorize 
the devices based on their maximum speed. Others objected to this 
approach, stating that circumstances should dictate the appropriate 
speed at which mobility devices should be operated--for example, a 
faster speed may be safer when crossing streets than it would be for 
sidewalk use--and merely because a device can go a certain speed 
does not mean it will be operated at that speed.
    The Department has decided to maintain the device's intended use 
as the appropriate determinant for which devices are categorized as 
``wheelchairs.'' However, because wheelchairs may be intended for 
use by individuals who have temporary conditions affecting mobility, 
the Department has decided that it is more appropriate to use the 
phrase ``primarily designed'' rather than ``solely designed'' in 
making such categorizations. The Department will not foreclose any 
future technological developments by identifying or banning specific 
devices or setting restrictions on size, weight, or dimensions. 
Moreover, devices designed primarily for use by individuals with 
mobility disabilities often are considered to be medical devices and 
are generally eligible for insurance reimbursement on this basis. 
Finally, devices designed primarily for use by individuals with 
mobility disabilities are less subject to fraud concerns because 
they were not designed to have a recreational component. 
Consequently, rarely, if ever, is any inquiry or assessment as to 
their appropriateness for use in a public entity necessary.
    Definition of ``wheelchair.'' In seeking public feedback on the 
NPRM's definition of ``wheelchair,'' the Department explained its 
concern that the definition of ``wheelchair'' in section 508(c)(2) 
of the ADA (formerly section 507(c)(2), July 26, 1990, 104 Stat. 
372, 42 U.S.C. 12207, renumbered section 508(c)(2), Public Law 110-
325 section 6(a)(2), Sept. 25, 2008, 122 Stat. 3558), which pertains 
to Federal wilderness areas, is not specific enough to provide clear 
guidance in the array of settings covered by title II and that the 
stringent size and weight requirements for the Department of 
Transportation's definition of ``common wheelchair'' are not a good 
fit in the context of most public entities. The Department noted in 
the NPRM that it sought a definition of ``wheelchair'' that would 
include manually-operated and power-driven wheelchairs and mobility 
scooters (i.e., those that typically are single-user, have three to 
four wheels, and are appropriate for both indoor and outdoor 
pedestrian areas), as well as a variety of types of wheelchairs and 
mobility scooters with individualized or unique features or models 
with different numbers of wheels. The NPRM defined a wheelchair as 
``a device designed solely for use by an individual with a mobility 
impairment for the primary purpose of locomotion in typical indoor 
and outdoor pedestrian areas. A wheelchair may be manually-operated 
or power-driven.'' 73 FR 34466, 34479 (June 17, 2008). Although the 
NPRM's definition of ``wheelchair'' excluded mobility devices that 
are not designed solely for use by individuals with mobility 
disabilities, the Department, noting that the use of the 
Segway[supreg] PT by individuals with mobility disabilities is on 
the upswing, inquired as to whether this device should be included 
in the definition of ``wheelchair.''
    Many environment and Federal government employee commenters 
objected to the Department's proposed definition of ``wheelchair'' 
because it differed from the definition of ``wheelchair'' found in 
section 508(c)(2) of the ADA--a definition used in the statute only 
in connection with a provision relating to the use of a wheelchair 
in a designated wilderness area. See 42 U.S.C. 12207(c)(1). Other 
government commenters associated with environmental issues wanted 
the phrase ``outdoor pedestrian use'' eliminated from the definition 
of ``wheelchair.'' Some transit system commenters wanted size, 
weight, and dimensions to be part of the definition because of 
concerns about costs associated with having to accommodate devices 
that exceed the dimensions of the ``common wheelchair'' upon which 
the 2004 ADAAG was based.
    Many advocacy, nonprofit, and individual commenters indicated 
that as long as the Department intends the scope of the term 
``mobility impairments'' to include other disabilities that cause 
mobility impairments (e.g., respiratory, circulatory, stamina, 
etc.), they were in support of the language. Several commenters 
indicated a preference for the definition of ``wheelchair'' in 
section 508(c)(2) of the ADA. One commenter indicated a preference 
for the term ``assistive device,'' as it is defined in the 
Rehabilitation Act of 1973, over the term ``wheelchair.'' A few 
commenters indicated that strollers should be added to the 
preamble's list of examples of wheelchairs because parents of 
children with disabilities frequently use strollers as mobility 
devices until their children get older.
    In the final rule, the Department has rearranged some wording 
and has made some changes in the terminology used in the definition 
of ``wheelchair,'' but essentially has retained the definition, and 
therefore the rationale, that was set forth in the NPRM. Again, the 
text of the ADA makes the definition of ``wheelchair'' contained in 
section 508(c)(2) applicable only to the specific context of uses in 
designated wilderness areas, and therefore does not compel the use 
of that definition for any other purpose. Moreover, the Department 
maintains that limiting the definition to devices suitable for use 
in an ``indoor pedestrian area'' as provided for in section 
508(c)(2) of the ADA, would ignore the technological advances in 
wheelchair design that have occurred since the ADA went into effect 
and that the inclusion of the phrase ``indoor pedestrian area'' in 
the definition of ``wheelchair'' would set back progress made by 
individuals with mobility disabilities who, for many years now, have 
been using devices designed for locomotion in indoor and outdoor 
settings. The Department has concluded that same rationale applies 
to placing limits on the size, weight, and dimensions of 
wheelchairs.
    With regard to the term ``mobility impairments,'' the Department 
intended a broad reading so that a wide range of disabilities, 
including circulatory and respiratory disabilities, that make 
walking difficult or impossible, would be included. In response to 
comments on this issue, the Department has revisited the issue and 
has concluded that the most apt term to achieve this intent is 
``mobility disability.''
    In addition, the Department has decided that it is more 
appropriate to use the phrase ``primarily'' designed for use by 
individuals with disabilities in the final rule, rather than 
``solely'' designed for use by individuals with disabilities--the 
phrase proposed in the NPRM. The Department believes that this 
phrase more accurately covers the range of devices the Department 
intends to fall within the definition of ``wheelchair.''
    After receiving comments that the word ``typical'' is vague and 
the phrase ``pedestrian areas'' is confusing to apply, particularly 
in the context of similar, but not identical, terms used in the 
proposed Standards, the Department decided to delete the term 
``typical indoor and outdoor pedestrian areas'' from the final rule. 
Instead, the final rule references ``indoor or of both indoor and 
outdoor locomotion,'' to make clear that the devices that fall 
within the definition of ``wheelchair'' are those that are used for 
locomotion on indoor and outdoor pedestrian paths or routes and not 
those that are intended exclusively for traversing undefined, 
unprepared, or unimproved paths or routes. Thus, the final rule 
defines the term ``wheelchair'' to mean ``a manually-operated or 
power-driven device designed primarily for use by an individual with 
a mobility disability for the main purpose of indoor or of both 
indoor and outdoor locomotion.''
    Whether the definition of ``wheelchair'' includes the 
Segway[supreg] PT. As discussed above, because individuals with 
mobility disabilities are using the Segway[supreg] PT as a mobility 
device, the Department asked whether it should be included in the 
definition of ``wheelchair.'' The basic Segway[supreg] PT model is a 
two-wheeled, gyroscopically-stabilized, battery-powered personal 
transportation device. The user stands on a platform suspended three 
inches

[[Page 56189]]

off the ground by wheels on each side, grasps a T-shaped handle, and 
steers the device similarly to a bicycle. Most Segway[supreg] PTs 
can travel up to 12\1/2\ miles per hour, compared to the average 
pedestrian walking speed of three to four miles per hour and the 
approximate maximum speed for power-operated wheelchairs of six 
miles per hour. In a study of trail and other non-motorized 
transportation users including EPAMDs, the Federal Highway 
Administration (FHWA) found that the eye height of individuals using 
EPAMDs ranged from approximately 69 to 80 inches. See Federal 
Highway Administration, Characteristics of Emerging Road and Trail 
Users and Their Safety (Oct. 14, 2004), available at http://www.tfhrc.gov/safety/pubs/04103 (last visited June 24, 2010). Thus, 
the Segway[supreg] PT can operate at much greater speeds than 
wheelchairs, and the average user stands much taller than most 
wheelchair users.
    The Segway[supreg] PT has been the subject of debate among 
users, pedestrians, disability advocates, State and local 
governments, businesses, and bicyclists. The fact that the 
Segway[supreg] PT is not designed primarily for use by individuals 
with disabilities, nor used primarily by persons with disabilities, 
complicates the question of to what extent individuals with 
disabilities should be allowed to operate them in areas and 
facilities where other power-driven mobility devices are not 
allowed. Those who question the use of the Segway[supreg] PT in 
pedestrian areas argue that the speed, size, and operating features 
of the devices make them too dangerous to operate alongside 
pedestrians and wheelchair users.
    Comments regarding whether to include the Segway[supreg] PT in 
the definition of ``wheelchair'' were, by far, the most numerous 
received in the category of comments regarding wheelchairs and other 
power-driven mobility devices. Significant numbers of veterans with 
disabilities, individuals with multiple sclerosis, and those 
advocating on their behalf made concise statements of general 
support for the inclusion of the Segway[supreg] PT in the definition 
of ``wheelchair.'' Two veterans offered extensive comments on the 
topic, along with a few advocacy and nonprofit groups and 
individuals with disabilities for whom sitting is uncomfortable or 
impossible.
    While there may be legitimate safety issues for EPAMD users and 
bystanders in some circumstances, EPAMDs and other non-traditional 
mobility devices can deliver real benefits to individuals with 
disabilities. Among the reasons given by commenters to include the 
Segway[supreg] PT in the definition of ``wheelchair'' were that the 
Segway[supreg] PT is well-suited for individuals with particular 
conditions that affect mobility including multiple sclerosis, 
Parkinson's disease, chronic obstructive pulmonary disease, 
amputations, spinal cord injuries, and other neurological 
disabilities, as well as functional limitations, such as gait 
limitation, inability to sit or discomfort in sitting, and 
diminished stamina issues. Such individuals often find that EPAMDs 
are more comfortable and easier to use than more traditional 
mobility devices and assist with balance, circulation, and digestion 
in ways that wheelchairs do not. See Rachel Metz, Disabled Embrace 
Segway, New York Times, Oct. 14, 2004. Commenters specifically cited 
pressure relief, reduced spasticity, increased stamina, and improved 
respiratory, neurologic, and muscular health as secondary medical 
benefits from being able to stand.
    Other arguments for including the Segway[supreg] PT in the 
definition of ``wheelchair'' were based on commenters' views that 
the Segway[supreg] PT offers benefits not provided by wheelchairs 
and mobility scooters, including its intuitive response to body 
movement, ability to operate with less coordination and dexterity 
than is required for many wheelchairs and mobility scooters, and 
smaller footprint and turning radius as compared to most wheelchairs 
and mobility scooters. Several commenters mentioned improved 
visibility, either due to the Segway[supreg] PT's raised platform or 
simply by virtue of being in a standing position. And finally, some 
commenters advocated for the inclusion of the Segway[supreg] PT 
simply based on civil rights arguments and the empowerment and self-
esteem obtained from having the power to select the mobility device 
of choice.
    Many commenters, regardless of their position on whether to 
include the Segway[supreg] PT in the definition of ``wheelchair,'' 
noted that the Segway[supreg] PT's safety record is as good as, if 
not better, than the record for wheelchairs and mobility scooters.
    Most environmental, transit system, and government commenters 
were opposed to including the Segway[supreg] PT in the definition of 
``wheelchair'' but were supportive of its inclusion as an ``other 
power-driven mobility device.'' Their concerns about including the 
Segway[supreg] PT in the definition of ``wheelchair'' had to do with 
the safety of the operators of these devices (e.g., height 
clearances on trains and sloping trails in parks) and of 
pedestrians, particularly in confined and crowded facilities or in 
settings where motorized devices might be unexpected; the potential 
harm to the environment; the additional administrative, insurance, 
liability, and defensive litigation costs; potentially detrimental 
impacts on the environment and cultural and natural resources; and 
the impracticality of accommodating such devices in public 
transportation settings.
    Other environmental, transit system, and government commenters 
would have banned all fuel-powered devices as mobility devices. In 
addition, these commenters would have classified non-motorized 
devices as ``wheelchairs'' and would have categorized motorized 
devices, such as the Segway[supreg] PT, battery-operated 
wheelchairs, and mobility scooters as ``other power-driven mobility 
devices.'' In support of this position, some of these commenters 
argued that because their equipment and facilities have been 
designed to comply with the dimensions of the ``common wheelchair'' 
upon which the ADAAG is based, any device that is larger than the 
prototype wheelchair would be misplaced in the definition of 
``wheelchair.''
    Still others in this group of commenters wished for only a 
single category of mobility devices and would have included 
wheelchairs, mobility scooters, and the Segway[supreg] PT as 
``mobility devices'' and excluded fuel-powered devices from that 
definition.
    Many disability advocacy and nonprofit commenters did not 
support the inclusion of the Segway[supreg] PT in the definition of 
``wheelchair.'' Paramount to these commenters was the maintenance of 
existing protections for wheelchair users. Because there was 
unanimous agreement that wheelchair use rarely, if ever, may be 
restricted, these commenters strongly favored categorizing 
wheelchairs separately from the Segway[supreg] PT and other power-
driven mobility devices and applying the intended-use determinant to 
assign the devices to either category. They indicated that while 
they support the greatest degree of access in public entities for 
all persons with disabilities who require the use of mobility 
devices, they recognize that under certain circumstances, allowing 
the use of other power-driven mobility devices would result in a 
fundamental alteration of programs, services, or activities, or run 
counter to legitimate safety requirements necessary for the safe 
operation of a public entity. While these groups supported 
categorizing the Segway[supreg] PT as an ``other power-driven 
mobility device,'' they universally noted that in their view, 
because the Segway[supreg] PT does not present environmental 
concerns and is as safe to use as, if not safer than, a wheelchair, 
it should be accommodated in most circumstances.
    The Department has considered all the comments and has concluded 
that it should not include the Segway[supreg] PT in the definition 
of ``wheelchair.'' The final rule provides that the test for 
categorizing a device as a wheelchair or an other power-driven 
mobility device is whether the device is designed primarily for use 
by individuals with mobility disabilities. Mobility scooters are 
included in the definition of ``wheelchair'' because they are 
designed primarily for users with mobility disabilities. However, 
because the current generation of EPAMDs, including the 
Segway[supreg] PT, was designed for recreational users and not 
primarily for use by individuals with mobility disabilities, the 
Department has decided to continue its approach of excluding EPAMDs 
from the definition of ``wheelchair'' and including them in the 
definition of ``other power-driven mobility device.'' Although 
EPAMDs, such as the Segway[supreg] PT, are not included in the 
definition of a ``wheelchair,'' public entities must assess whether 
they can make reasonable modifications to permit individuals with 
mobility disabilities to use such devices on their premises. The 
Department recognizes that the Segway[supreg] PT provides many 
benefits to those who use them as mobility devices, including a 
measure of privacy with regard to the nature of one's particular 
disability, and believes that in the vast majority of circumstances, 
the application of the factors described in Sec.  35.137 for 
providing access to other-powered mobility devices will result in 
the admission of the Segway[supreg] PT.
    Treatment of ``manually-powered mobility aids.'' The 
Department's NPRM did not define the term ``manually-powered 
mobility aids.'' Instead, the NPRM included a non-

[[Page 56190]]

exhaustive list of examples in Sec.  35.137(a). The NPRM queried 
whether the Department should maintain this approach to manually-
powered mobility aids or whether it should adopt a more formal 
definition.
    Only a few commenters addressed ``manually-powered mobility 
aids.'' Virtually all commenters were in favor of maintaining a non-
exhaustive list of examples of ``manually-powered mobility aids'' 
rather than adopting a definition of the term. Of those who 
commented, a few sought clarification of the term ``manually-
powered.'' One commenter suggested that the term be changed to 
``human-powered.'' Other commenters requested that the Department 
include ordinary strollers in the non-exhaustive list of ``manually-
powered mobility aids.'' Since strollers are not devices designed 
primarily for individuals with mobility disabilities, the Department 
does not consider them to be manually-powered mobility aids; 
however, strollers used in the context of transporting individuals 
with disabilities are subject to the same assessment required by the 
ADA's title II reasonable modification standards at Sec.  
35.130(b)(7). The Department believes that because the existing 
approach is clear and understood easily by the public, no formal 
definition of the term ``manually-powered mobility aids'' is 
required.
    Definition of ``other power-driven mobility device.'' The 
Department's NPRM defined the term ``other power-driven mobility 
device'' in Sec.  35.104 as ``any of a large range of devices 
powered by batteries, fuel, or other engines--whether or not 
designed solely for use by individuals with mobility impairments--
that are used by individuals with mobility impairments for the 
purpose of locomotion, including golf cars, bicycles, electronic 
personal assistance mobility devices (EPAMDs), or any mobility aid 
designed to operate in areas without defined pedestrian routes.'' 73 
FR 34466, 34504 (June 17, 2008).
    Nearly all environmental, transit systems, and government 
commenters who supported the two-tiered concept of mobility devices 
said that the Department's definition of ``other power-driven 
mobility device'' is overbroad because it includes fuel-powered 
devices. These commenters sought a ban on fuel-powered devices in 
their entirety because they believe they are inherently dangerous 
and pose environmental and safety concerns. They also argued that 
permitting the use of many of the contemplated other power-driven 
mobility devices, fuel-powered ones especially, would fundamentally 
alter the programs, services, or activities of public entities.
    Advocacy, nonprofit, and several individual commenters supported 
the definition of ``other power-driven mobility device'' because it 
allows new technologies to be added in the future, maintains the 
existing legal protections for wheelchairs, and recognizes that some 
devices, particularly the Segway[supreg] PT, which are not designed 
primarily for individuals with mobility disabilities, have 
beneficial uses for individuals with mobility disabilities. Despite 
support for the definition of ``other power-driven mobility 
device,'' however, most advocacy and nonprofit commenters expressed 
at least some hesitation about the inclusion of fuel-powered 
mobility devices in the definition. While virtually all of these 
commenters noted that a blanket exclusion of any device that falls 
under the definition of ``other power-driven mobility device'' would 
violate basic civil rights concepts, they also specifically stated 
that certain devices, particularly, off-highway vehicles, cannot be 
permitted in certain circumstances. They also made a distinction 
between the Segway[supreg] PT and other power-driven mobility 
devices, noting that the Segway[supreg] PT should be accommodated in 
most circumstances because it satisfies the safety and environmental 
elements of the policy analysis. These commenters indicated that 
they agree that other power-driven mobility devices must be 
assessed, particularly as to their environmental impact, before they 
are accommodated.
    Although many commenters had reservations about the inclusion of 
fuel-powered devices in the definition of other power-driven 
mobility devices, the Department does not want the definition to be 
so narrow that it would foreclose the inclusion of new technological 
developments (whether powered by fuel or by some other means). It is 
for this reason that the Department has maintained the phrase ``any 
mobility device designed to operate in areas without defined 
pedestrian routes'' in the final rule's definition of other power-
driven mobility devices. The Department believes that the 
limitations provided by ``fundamental alteration'' and the ability 
to impose legitimate safety requirements will likely prevent the use 
of fuel and combustion engine-driven devices indoors, as well as in 
outdoor areas with heavy pedestrian traffic. The Department notes, 
however, that in the future, technological developments may result 
in the production of safe fuel-powered mobility devices that do not 
pose environmental and safety concerns. The final rule allows 
consideration to be given as to whether the use of a fuel-powered 
device would create a substantial risk of serious harm to the 
environment or natural or cultural resources, and to whether the use 
of such a device conflicts with Federal land management laws or 
regulations; this aspect of the final rule will further limit the 
inclusion of fuel-powered devices where they are not appropriate. 
Consequently, the Department has maintained fuel-powered devices in 
the definition of ``other power-driven mobility device.'' The 
Department has also added language to the definition of ``other 
power-driven mobility device'' to reiterate that the definition does 
not apply to Federal wilderness areas, which are not covered by 
title II of the ADA; the use of wheelchairs in such areas is 
governed by section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).

``Qualified Interpreter''

    In the NPRM, the Department proposed adding language to the 
definition of ``qualified interpreter'' to clarify that the term 
includes, but is not limited to, sign language interpreters, oral 
interpreters, and cued-speech interpreters. As the Department 
explained, not all interpreters are qualified for all situations. 
For example, a qualified interpreter who uses American Sign Language 
(ASL) is not necessarily qualified to interpret orally. In addition, 
someone with only a rudimentary familiarity with sign language or 
finger spelling is not qualified, nor is someone who is fluent in 
sign language but unable to translate spoken communication into ASL 
or to translate signed communication into spoken words.
    As further explained, different situations will require 
different types of interpreters. For example, an oral interpreter 
who has special skill and training to mouth a speaker's words 
silently for individuals who are deaf or hard of hearing may be 
necessary for an individual who was raised orally and taught to read 
lips or was diagnosed with hearing loss later in life and does not 
know sign language. An individual who is deaf or hard of hearing may 
need an oral interpreter if the speaker's voice is unclear, if there 
is a quick-paced exchange of communication (e.g., in a meeting), or 
when the speaker does not directly face the individual who is deaf 
or hard of hearing. A cued-speech interpreter functions in the same 
manner as an oral interpreter except that he or she also uses a hand 
code or cue to represent each speech sound.
    The Department received many comments regarding the proposed 
modifications to the definition of ``interpreter.'' Many commenters 
requested that the Department include within the definition a 
requirement that interpreters be certified, particularly if they 
reside in a State that licenses or certifies interpreters. Other 
commenters opposed a certification requirement as unduly limiting, 
noting that an interpreter may well be qualified even if that same 
interpreter is not certified. These commenters noted the absence of 
nationwide standards or universally accepted criteria for 
certification.
    On review of this issue, the Department has decided against 
imposing a certification requirement under the ADA. It is sufficient 
under the ADA that the interpreter be qualified. However, as the 
Department stated in the original preamble, this rule does not 
invalidate or limit State or local laws that impose standards for 
interpreters that are equal to or more stringent than those imposed 
by this definition. See 28 CFR part 35, app. A at 566 (2009). For 
instance, the definition would not supersede any requirement of 
State law for use of a certified interpreter in court proceedings.
    With respect to the proposed additions to the rule, most 
commenters supported the expansion of the list of qualified 
interpreters, and some advocated for the inclusion of other types of 
interpreters on the list as well, such as deaf-blind interpreters, 
certified deaf interpreters, and speech-to-speech interpreters. As 
these commenters explained, deaf-blind interpreters are interpreters 
who have specialized skills and training to interpret for 
individuals who are deaf and blind; certified deaf interpreters are 
deaf or hard of hearing interpreters who work with hearing sign 
language interpreters to meet the specific communication needs of 
deaf individuals; and speech-to-speech interpreters have special 
skill and training to interpret for individuals who have speech 
disabilities.

[[Page 56191]]

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

``Qualified Reader''

    The 1991 title II regulation identifies a qualified reader as an 
auxiliary aid, but did not define the term. See 28 CFR 35.104(2). 
Based upon the Department's investigation of complaints alleging 
that some entities have provided ineffective readers, the Department 
proposed in the NPRM to define ``qualified reader'' similarly to 
``qualified interpreter'' to ensure that entities select qualified 
individuals to read an examination or other written information in 
an effective, accurate, and impartial manner. This proposal was 
suggested in order to make clear to public entities that a failure 
to provide a qualified reader to a person with a disability may 
constitute a violation of the requirement to provide appropriate 
auxiliary aids and services.
    The Department received comments supporting inclusion in the 
regulation of a definition of a ``qualified reader.'' Some 
commenters suggested the Department add to the definition a 
requirement prohibiting the use of a reader whose accent, diction, 
or pronunciation makes full comprehension of material being read 
difficult. Another commenter requested that the Department include a 
requirement that the reader ``will follow the directions of the 
person for whom he or she is reading.'' Commenters also requested 
that the Department define ``accurately'' and ``effectively'' as 
used in this definition.
    While the Department believes that its proposed regulatory 
definition adequately addresses these concerns, the Department 
emphasizes that a reader, in order to be ``qualified,'' must be 
skilled in reading the language and subject matter and must be able 
to be easily understood by the individual with the disability. For 
example, if a reader is reading aloud the questions for a college 
microbiology examination, that reader, in order to be qualified, 
must know the proper pronunciation of scientific terminology used in 
the text, and must be sufficiently articulate to be easily 
understood by the individual with a disability for whom he or she is 
reading. In addition, the terms ``effectively'' and ``accurately'' 
have been successfully used and understood in the Department's 
existing definition of ``qualified interpreter'' since 1991 without 
specific regulatory definitions. Instead, the Department has relied 
upon the common use and understanding of those terms from standard 
English dictionaries. Thus, the definition of ``qualified reader'' 
has not been changed from that contained in the NPRM. The final rule 
defines ``qualified reader'' to mean ``a person who is able to read 
effectively, accurately, and impartially using any necessary 
specialized vocabulary.''

``Service Animal''

    Although there is no specific language in the 1991 title II 
regulation concerning service animals, title II entities have the 
same legal obligations as title III entities to make reasonable 
modifications in policies, practices, or procedures to allow service 
animals when necessary in order to avoid discrimination on the basis 
of disability, unless the entity can demonstrate that making the 
modifications would fundamentally alter the nature of the service, 
program, or activity. See 28 CFR 35.130(b)(7). The 1991 title III 
regulation, 28 CFR 36.104, defines a ``service animal'' as ``any 
guide dog, signal dog, or other animal individually trained to do 
work or perform tasks for the benefit of an individual with a 
disability, including, but not limited to, guiding individuals with 
impaired vision, alerting individuals with impaired hearing to 
intruders or sounds, providing minimal protection or rescue work, 
pulling a wheelchair, or fetching dropped items.'' Section 
36.302(c)(1) of the 1991 title III regulation requires that 
``[g]enerally, a public accommodation shall modify policies, 
practices, or procedures to permit the use of a service animal by an 
individual with a disability.'' Section 36.302(c)(2) of the 1991 
title III regulation states that ``a public accommodation [is not 
required] to supervise or care for a service animal.''
    The Department has issued guidance and provided technical 
assistance and publications concerning service animals since the 
1991 regulations became effective. In the NPRM, the Department 
proposed to modify the definition of service animal, added the 
definition to title II, and asked for public input on several issues 
related to the service animal provisions of the title II regulation: 
whether the Department should clarify the phrase ``providing minimal 
protection'' in the definition or remove it; whether there are any 
circumstances where a service animal ``providing minimal 
protection'' would be appropriate or expected; whether certain 
species should be eliminated from the definition of ``service 
animal,'' and, if so, which types of animals should be excluded; 
whether ``common domestic animal'' should be part of the definition; 
and whether a size or weight limitation should be imposed for common 
domestic animals even if the animal satisfies the ``common domestic 
animal'' part of the NPRM definition.
    The Department received extensive comments on these issues, as 
well as requests to clarify the obligations of State and local 
government entities to accommodate individuals with disabilities who 
use service animals, and has modified the final rule in response. In 
the interests of avoiding unnecessary repetition, the Department has 
elected to discuss the issues raised in the NPRM questions about 
service animals and

[[Page 56192]]

the corresponding public comments in the following discussion of the 
definition of ``service animal.''
    The Department's final rule defines ``service animal'' as ``any 
dog that is individually trained to do work or perform tasks for the 
benefit of an individual with a disability, including a physical, 
sensory, psychiatric, intellectual, or other mental disability. 
Other species of animals, whether wild or domestic, trained or 
untrained, are not service animals for the purposes of this 
definition. The work or tasks performed by a service animal must be 
directly related to the handler's disability. Examples of work or 
tasks include, but are not limited to, assisting individuals who are 
blind or have low vision with navigation and other tasks, alerting 
individuals who are deaf or hard of hearing to the presence of 
people or sounds, providing non-violent protection or rescue work, 
pulling a wheelchair, assisting an individual during a seizure, 
alerting individuals to the presence of allergens, retrieving items 
such as medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and helping persons with psychiatric and neurological 
disabilities by preventing or interrupting impulsive or destructive 
behaviors. The crime deterrent effects of an animal's presence and 
the provision of emotional support, well-being, comfort, or 
companionship do not constitute work or tasks for the purposes of 
this definition.''
    This definition has been designed to clarify a key provision of 
the ADA. Many covered entities indicated that they are confused 
regarding their obligations under the ADA with regard to individuals 
with disabilities who use service animals. Individuals with 
disabilities who use trained guide or service dogs are concerned 
that if untrained or unusual animals are termed ``service animals,'' 
their own right to use guide or service dogs may become 
unnecessarily restricted or questioned. Some individuals who are not 
individuals with disabilities have claimed, whether fraudulently or 
sincerely (albeit mistakenly), that their animals are service 
animals covered by the ADA, in order to gain access to courthouses, 
city or county administrative offices, and other title II 
facilities. The increasing use of wild, exotic, or unusual species, 
many of which are untrained, as service animals has also added to 
the confusion.
    Finally, individuals with disabilities who have the legal right 
under the Fair Housing Act (FHAct) to use certain animals in their 
homes as a reasonable accommodation to their disabilities have 
assumed that their animals also qualify under the ADA. This is not 
necessarily the case, as discussed below.
    The Department recognizes the diverse needs and preferences of 
individuals with disabilities protected under the ADA, and does not 
wish to unnecessarily impede individual choice. Service animals play 
an integral role in the lives of many individuals with disabilities 
and, with the clarification provided by the final rule, individuals 
with disabilities will continue to be able to use their service 
animals as they go about their daily activities and civic 
interactions. The clarification will also help to ensure that the 
fraudulent or mistaken use of other animals not qualified as service 
animals under the ADA will be deterred. A more detailed analysis of 
the elements of the definition and the comments responsive to the 
service animal provisions of the NPRM follows.
    Providing minimal protection. As previously noted, the 1991 
title II regulation does not contain specific language concerning 
service animals. The 1991 title III regulation included language 
stating that ``minimal protection'' was a task that could be 
performed by an individually trained service animal for the benefit 
of an individual with a disability. In the Department's ``ADA 
Business Brief on Service Animals'' (2002), the Department 
interpreted the ``minimal protection'' language within the context 
of a seizure (i.e., alerting and protecting a person who is having a 
seizure). The Department received many comments in response to the 
question of whether the ``minimal protection'' language should be 
clarified. Many commenters urged the removal of the ``minimal 
protection'' language from the service animal definition for two 
reasons: (1) The phrase can be interpreted to allow any dog that is 
trained to be aggressive to qualify as a service animal simply by 
pairing the animal with a person with a disability; and (2) the 
phrase can be interpreted to allow any untrained pet dog to qualify 
as a service animal, since many consider the mere presence of a dog 
to be a crime deterrent, and thus sufficient to meet the minimal 
protection standard. These commenters argued, and the Department 
agrees, that these interpretations were not contemplated under the 
original title III regulation, and, for the purposes of the final 
title II regulations, the meaning of ``minimal protection'' must be 
made clear.
    While many commenters stated that they believe that the 
``minimal protection'' language should be eliminated, other 
commenters recommended that the language be clarified, but retained. 
Commenters favoring clarification of the term suggested that the 
Department explicitly exclude the function of attack or exclude 
those animals that are trained solely to be aggressive or 
protective. Other commenters identified non-violent behavioral tasks 
that could be construed as minimally protective, such as 
interrupting self-mutilation, providing safety checks and room 
searches, reminding the handler to take medications, and protecting 
the handler from injury resulting from seizures or unconsciousness.
    Several commenters noted that the existing direct threat 
defense, which allows the exclusion of a service animal if the 
animal exhibits unwarranted or unprovoked violent behavior or poses 
a direct threat, prevents the use of ``attack dogs'' as service 
animals. One commenter noted that the use of a service animal 
trained to provide ``minimal protection'' may impede access to care 
in an emergency, for example, where the first responder, usually a 
title II entity, is unable or reluctant to approach a person with a 
disability because the individual's service animal is in a 
protective posture suggestive of aggression.
    Many organizations and individuals stated that in the general 
dog training community, ``protection'' is code for attack or 
aggression training and should be removed from the definition. 
Commenters stated that there appears to be a broadly held 
misconception that aggression-trained animals are appropriate 
service animals for persons with post traumatic stress disorder 
(PTSD). While many individuals with PTSD may benefit by using a 
service animal, the work or tasks performed appropriately by such an 
animal would not involve unprovoked aggression but could include 
actively cuing the handler by nudging or pawing the handler to alert 
to the onset of an episode and removing the individual from the 
anxiety-provoking environment.
    The Department recognizes that despite its best efforts to 
provide clarification, the ``minimal protection'' language appears 
to have been misinterpreted. While the Department maintains that 
protection from danger is one of the key functions that service 
animals perform for the benefit of persons with disabilities, the 
Department recognizes that an animal individually trained to provide 
aggressive protection, such as an attack dog, is not appropriately 
considered a service animal. Therefore, the Department has decided 
to modify the ``minimal protection'' language to read ``non-violent 
protection,'' thereby excluding so-called ``attack dogs'' or dogs 
with traditional ``protection training'' as service animals. The 
Department believes that this modification to the service animal 
definition will eliminate confusion, without restricting 
unnecessarily the type of work or tasks that service animals may 
perform. The Department's modification also clarifies that the 
crime-deterrent effect of a dog's presence, by itself, does not 
qualify as work or tasks for purposes of the service animal 
definition.
    Alerting to intruders. The phrase ``alerting to intruders'' is 
related to the issues of minimal protection and the work or tasks an 
animal may perform to meet the definition of a service animal. In 
the original 1991 regulatory text, this phrase was intended to 
identify service animals that alert individuals who are deaf or hard 
of hearing to the presence of others. This language has been 
misinterpreted by some to apply to dogs that are trained 
specifically to provide aggressive protection, resulting in the 
assertion that such training qualifies a dog as a service animal 
under the ADA. The Department reiterates that title II entities are 
not required to admit any animal whose use poses a direct threat 
under Sec.  35.139. In addition, the Department has decided to 
remove the word ``intruders'' from the service animal definition and 
replace it with the phrase ``the presence of people or sounds.'' The 
Department believes this clarifies that so-called ``attack 
training'' or other aggressive response types of training that cause 
a dog to provide an aggressive response do not qualify a dog as a 
service animal under the ADA.
    Conversely, if an individual uses a breed of dog that is 
perceived to be aggressive because of breed reputation, stereotype, 
or the history or experience the observer may have with other dogs, 
but the dog is under the control of the individual with a disability 
and does not exhibit aggressive behavior, the title II entity cannot 
exclude the individual

[[Page 56193]]

or the animal from a State or local government program, service, or 
facility. The animal can only be removed if it engages in the 
behaviors mentioned in Sec.  35.136(b) (as revised in the final 
rule) or if the presence of the animal constitutes a fundamental 
alteration to the nature of the service, program, or activity of the 
title II entity.
    Doing ``work'' or ``performing tasks.'' The NPRM proposed that 
the Department maintain the requirement, first articulated in the 
1991 title III regulation, that in order to qualify as a service 
animal, the animal must ``perform tasks'' or ``do work'' for the 
individual with a disability. The phrases ``perform tasks'' and ``do 
work'' describe what an animal must do for the benefit of an 
individual with a disability in order to qualify as a service 
animal.
    The Department received a number of comments in response to the 
NPRM proposal urging the removal of the term ``do work'' from the 
definition of a service animal. These commenters argued that the 
Department should emphasize the performance of tasks instead. The 
Department disagrees. Although the common definition of work 
includes the performance of tasks, the definition of work is 
somewhat broader, encompassing activities that do not appear to 
involve physical action.
    One service dog user stated that in some cases, ``critical forms 
of assistance can't be construed as physical tasks,'' noting that 
the manifestations of ``brain-based disabilities,'' such as 
psychiatric disorders and autism, are as varied as their physical 
counterparts. The Department agrees with this statement but cautions 
that unless the animal is individually trained to do something that 
qualifies as work or a task, the animal is a pet or support animal 
and does not qualify for coverage as a service animal. A pet or 
support animal may be able to discern that the handler is in 
distress, but it is what the animal is trained to do in response to 
this awareness that distinguishes a service animal from an observant 
pet or support animal.
    The NPRM contained an example of ``doing work'' that stated ``a 
psychiatric service dog can help some individuals with dissociative 
identity disorder to remain grounded in time or place.'' 73 FR 
34466, 34504 (June 17, 2008). Several commenters objected to the use 
of this example, arguing that grounding was not a ``task'' and 
therefore, the example inherently contradicted the basic premise 
that a service animal must perform a task in order to mitigate a 
disability. Other commenters stated that ``grounding'' should not be 
included as an example of ``work'' because it could lead to some 
individuals claiming that they should be able to use emotional 
support animals in public because the dog makes them feel calm or 
safe. By contrast, one commenter with experience in training service 
animals explained that grounding is a trained task based upon very 
specific behavioral indicators that can be observed and measured. 
These tasks are based upon input from mental health practitioners, 
dog trainers, and individuals with a history of working with 
psychiatric service dogs.
    It is the Department's view that an animal that is trained to 
``ground'' a person with a psychiatric disorder does work or 
performs a task that would qualify it as a service animal as 
compared to an untrained emotional support animal whose presence 
affects a person's disability. It is the fact that the animal is 
trained to respond to the individual's needs that distinguishes an 
animal as a service animal. The process must have two steps: 
Recognition and response. For example, if a service animal senses 
that a person is about to have a psychiatric episode and it is 
trained to respond for example, by nudging, barking, or removing the 
individual to a safe location until the episode subsides, then the 
animal has indeed performed a task or done work on behalf of the 
individual with the disability, as opposed to merely sensing an 
event.
    One commenter suggested defining the term ``task,'' presumably 
to improve the understanding of the types of services performed by 
an animal that would be sufficient to qualify the animal for 
coverage. The Department believes that the common definition of the 
word ``task'' is sufficiently clear and that it is not necessary to 
add to the definitions section. However, the Department has added 
examples of other kinds of work or tasks to help illustrate and 
provide clarity to the definition. After careful evaluation of this 
issue, the Department has concluded that the phrases ``do work'' and 
``perform tasks'' have been effective during the past two decades to 
illustrate the varied services provided by service animals for the 
benefit of individuals with all types of disabilities. Thus, the 
Department declines to depart from its longstanding approach at this 
time.
    Species limitations. When the Department originally issued its 
title III regulation in the early 1990s, the Department did not 
define the parameters of acceptable animal species. At that time, 
few anticipated the variety of animals that would be promoted as 
service animals in the years to come, which ranged from pigs and 
miniature horses to snakes, iguanas, and parrots. The Department has 
followed this particular issue closely, keeping current with the 
many unusual species of animals represented to be service animals. 
Thus, the Department has decided to refine further this aspect of 
the service animal definition in the final rule.
    The Department received many comments from individuals and 
organizations recommending species limitations. Several of these 
commenters asserted that limiting the number of allowable species 
would help stop erosion of the public's trust, which has resulted in 
reduced access for many individuals with disabilities who use 
trained service animals that adhere to high behavioral standards. 
Several commenters suggested that other species would be acceptable 
if those animals could meet nationally recognized behavioral 
standards for trained service dogs. Other commenters asserted that 
certain species of animals (e.g., reptiles) cannot be trained to do 
work or perform tasks, so these animals would not be covered.
    In the NPRM, the Department used the term ``common domestic 
animal'' in the service animal definition and excluded reptiles, 
rabbits, farm animals (including horses, miniature horses, ponies, 
pigs, and goats), ferrets, amphibians, and rodents from the service 
animal definition. 73 FR 34466, 34478 (June 17, 2008). However, the 
term ``common domestic animal'' is difficult to define with 
precision due to the increase in the number of domesticated species. 
Also, several State and local laws define a ``domestic'' animal as 
an animal that is not wild. The Department agrees with commenters' 
views that limiting the number and types of species recognized as 
service animals will provide greater predictability for State and 
local government entities as well as added assurance of access for 
individuals with disabilities who use dogs as service animals. As a 
consequence, the Department has decided to limit this rule's 
coverage of service animals to dogs, which are the most common 
service animals used by individuals with disabilities.
    Wild animals, monkeys, and other nonhuman primates. Numerous 
business entities endorsed a narrow definition of acceptable service 
animal species, and asserted that there are certain animals (e.g., 
reptiles) that cannot be trained to do work or perform tasks. Other 
commenters suggested that the Department should identify excluded 
animals, such as birds and llamas, in the final rule. Although one 
commenter noted that wild animals bred in captivity should be 
permitted to be service animals, the Department has decided to make 
clear that all wild animals, whether born or bred in captivity or in 
the wild, are eliminated from coverage as service animals. The 
Department believes that this approach reduces risks to health or 
safety attendant with wild animals. Some animals, such as certain 
nonhuman primates including certain monkeys, pose a direct threat; 
their behavior can be unpredictably aggressive and violent without 
notice or provocation. The American Veterinary Medical Association 
(AVMA) issued a position statement advising against the use of 
monkeys as service animals, stating that ``[t]he AVMA does not 
support the use of nonhuman primates as assistance animals because 
of animal welfare concerns, and the potential for serious injury and 
zoonotic [animal to human disease transmission] risks.'' AVMA 
Position Statement, Nonhuman Primates as Assistance Animals, (2005) 
available at http://www.avma.org/issues/policy/nonhuman_primates.asp (last visited June 24, 2010).
    An organization that trains capuchin monkeys to provide in-home 
services to individuals with paraplegia and quadriplegia was in 
substantial agreement with the AVMA's views but requested a limited 
recognition in the service animal definition for the capuchin 
monkeys it trains to provide assistance for persons with 
disabilities. The organization commented that its trained capuchin 
monkeys undergo scrupulous veterinary examinations to ensure that 
the animals pose no health risks, and are used by individuals with 
disabilities exclusively in their homes. The organization 
acknowledged that the capuchin monkeys it trains are not necessarily 
suitable for use in State or local government facilities. The 
organization noted that several State and local government entities 
have local zoning, licensing, health,

[[Page 56194]]

and safety laws that prohibit nonhuman primates, and that these 
prohibitions would prevent individuals with disabilities from using 
these animals even in their homes.
    The organization argued that including capuchin monkeys under 
the service animal umbrella would make it easier for individuals 
with disabilities to obtain reasonable modifications of State and 
local licensing, health, and safety laws that would permit the use 
of these monkeys. The organization argued that this limited 
modification to the service animal definition was warranted in view 
of the services these monkeys perform, which enable many individuals 
with paraplegia and quadriplegia to live and function with increased 
independence.
    The Department has carefully considered the potential risks 
associated with the use of nonhuman primates as service animals in 
State and local government facilities, as well as the information 
provided to the Department about the significant benefits that 
trained capuchin monkeys provide to certain individuals with 
disabilities in residential settings. The Department has determined, 
however, that nonhuman primates, including capuchin monkeys, will 
not be recognized as service animals for purposes of this rule 
because of their potential for disease transmission and 
unpredictable aggressive behavior. The Department believes that 
these characteristics make nonhuman primates unsuitable for use as 
service animals in the context of the wide variety of public 
settings subject to this rule. As the organization advocating the 
inclusion of capuchin monkeys acknowledges, capuchin monkeys are not 
suitable for use in public facilities.
    The Department emphasizes that it has decided only that capuchin 
monkeys will not be included in the definition of service animals 
for purposes of its regulation implementing the ADA. This decision 
does not have any effect on the extent to which public entities are 
required to allow the use of such monkeys under other Federal 
statutes. For example, under the FHAct, an individual with a 
disability may have the right to have an animal other than a dog in 
his or her home if the animal qualifies as a ``reasonable 
accommodation'' that is necessary to afford the individual equal 
opportunity to use and enjoy a dwelling, assuming that the use of 
the animal does not pose a direct threat. In some cases, the right 
of an individual to have an animal under the FHAct may conflict with 
State or local laws that prohibit all individuals, with or without 
disabilities, from owning a particular species. However, in this 
circumstance, an individual who wishes to request a reasonable 
modification of the State or local law must do so under the FHAct, 
not the ADA.
    Having considered all of the comments about which species should 
qualify as service animals under the ADA, the Department has 
determined the most reasonable approach is to limit acceptable 
species to dogs.
    Size or weight limitations. The vast majority of commenters did 
not support a size or weight limitation. Commenters were typically 
opposed to a size or weight limit because many tasks performed by 
service animals require large, strong dogs. For instance, service 
animals may perform tasks such as providing balance and support or 
pulling a wheelchair. Small animals may not be suitable for large 
adults. The weight of the service animal user is often correlated 
with the size and weight of the service animal. Others were 
concerned that adding a size and weight limit would further 
complicate the difficult process of finding an appropriate service 
animal. One commenter noted that there is no need for a limit 
because ``if, as a practical matter, the size or weight of an 
individual's service animal creates a direct threat or fundamental 
alteration to a particular public entity or accommodation, there are 
provisions that allow for the animal's exclusion or removal.'' Some 
common concerns among commenters in support of a size and weight 
limit were that a larger animal may be less able to fit in various 
areas with its handler, such as toilet rooms and public seating 
areas, and that larger animals are more difficult to control.
    Balancing concerns expressed in favor of and against size and 
weight limitations, the Department has determined that such 
limitations would not be appropriate. Many individuals of larger 
stature require larger dogs. The Department believes it would be 
inappropriate to deprive these individuals of the option of using a 
service dog of the size required to provide the physical support and 
stability these individuals may need to function independently. 
Since large dogs have always served as service animals, continuing 
their use should not constitute fundamental alterations or impose 
undue burdens on title II entities.
    Breed limitations. A few commenters suggested that certain 
breeds of dogs should not be allowed to be used as service animals. 
Some suggested that the Department should defer to local laws 
restricting the breeds of dogs that individuals who reside in a 
community may own. Other commenters opposed breed restrictions, 
stating that the breed of a dog does not determine its propensity 
for aggression and that aggressive and non-aggressive dogs exist in 
all breeds.
    The Department does not believe that it is either appropriate or 
consistent with the ADA to defer to local laws that prohibit certain 
breeds of dogs based on local concerns that these breeds may have a 
history of unprovoked aggression or attacks. Such deference would 
have the effect of limiting the rights of persons with disabilities 
under the ADA who use certain service animals based on where they 
live rather than on whether the use of a particular animal poses a 
direct threat to the health and safety of others. Breed restrictions 
differ significantly from jurisdiction to jurisdiction. Some 
jurisdictions have no breed restrictions. Others have restrictions 
that, while well-meaning, have the unintended effect of screening 
out the very breeds of dogs that have successfully served as service 
animals for decades without a history of the type of unprovoked 
aggression or attacks that would pose a direct threat, e.g., German 
Shepherds. Other jurisdictions prohibit animals over a certain 
weight, thereby restricting breeds without invoking an express breed 
ban. In addition, deference to breed restrictions contained in local 
laws would have the unacceptable consequence of restricting travel 
by an individual with a disability who uses a breed that is 
acceptable and poses no safety hazards in the individual's home 
jurisdiction but is nonetheless banned by other jurisdictions. State 
and local government entities have the ability to determine, on a 
case-by-case basis, whether a particular service animal can be 
excluded based on that particular animal's actual behavior or 
history--not based on fears or generalizations about how an animal 
or breed might behave. This ability to exclude an animal whose 
behavior or history evidences a direct threat is sufficient to 
protect health and safety.
    Recognition of psychiatric service animals but not ``emotional 
support animals.'' The definition of ``service animal'' in the NPRM 
stated the Department's longstanding position that emotional support 
animals are not included in the definition of ``service animal.'' 
The proposed text in Sec.  35.104 provided that ``[a]nimals whose 
sole function is to provide emotional support, comfort, therapy, 
companionship, therapeutic benefits or to promote emotional well-
being are not service animals.'' 73 FR 34466, 34504 (June 17, 2008).
    Many advocacy organizations expressed concern and disagreed with 
the exclusion of comfort and emotional support animals. Others have 
been more specific, stating that individuals with disabilities may 
need their emotional support animals in order to have equal access. 
Some commenters noted that individuals with disabilities use animals 
that have not been trained to perform tasks directly related to 
their disability. These animals do not qualify as service animals 
under the ADA. These are emotional support or comfort animals.
    Commenters asserted that excluding categories such as 
``comfort'' and ``emotional support'' animals recognized by laws 
such as the FHAct or the Air Carrier Access Act (ACAA) is confusing 
and burdensome. Other commenters noted that emotional support and 
comfort animals perform an important function, asserting that animal 
companionship helps individuals who experience depression resulting 
from multiple sclerosis.
    Some commenters explained the benefits emotional support animals 
provide, including emotional support, comfort, therapy, 
companionship, therapeutic benefits, and the promotion of emotional 
well-being. They contended that without the presence of an emotional 
support animal in their lives they would be disadvantaged and unable 
to participate in society. These commenters were concerned that 
excluding this category of animals will lead to discrimination 
against, and the excessive questioning of, individuals with non-
visible or non-apparent disabilities. Other commenters expressing 
opposition to the exclusion of individually trained ``comfort'' or 
``emotional support'' animals asserted that the ability to soothe or 
de-escalate and control emotion is ``work'' that benefits the 
individual with the disability.
    Many commenters requested that the Department carve out an 
exception that permits current or former members of the

[[Page 56195]]

military to use emotional support animals. They asserted that a 
significant number of service members returning from active combat 
duty have adjustment difficulties due to combat, sexual assault, or 
other traumatic experiences while on active duty. Commenters noted 
that some current or former members of the military service have 
been prescribed animals for conditions such as PTSD. One commenter 
stated that service women who were sexually assaulted while in the 
military use emotional support animals to help them feel safe enough 
to step outside their homes. The Department recognizes that many 
current and former members of the military have disabilities as a 
result of service-related injuries that may require emotional 
support and that such individuals can benefit from the use of an 
emotional support animal and could use such animal in their home 
under the FHAct. However, having carefully weighed the issues, the 
Department believes that its final rule appropriately addresses the 
balance of issues and concerns of both the individual with a 
disability and the public entity. The Department also notes that 
nothing in this part prohibits a public entity from allowing current 
or former military members or anyone else with disabilities to 
utilize emotional support animals if it wants to do so.
    Commenters asserted the view that if an animal's ``mere 
presence'' legitimately provides such benefits to an individual with 
a disability and if those benefits are necessary to provide equal 
opportunity given the facts of the particular disability, then such 
an animal should qualify as a ``service animal.'' Commenters noted 
that the focus should be on the nature of a person's disability, the 
difficulties the disability may impose and whether the requested 
accommodation would legitimately address those difficulties, not on 
evaluating the animal involved. The Department understands this 
approach has benefitted many individuals under the FHAct and 
analogous State law provisions, where the presence of animals poses 
fewer health and safety issues, and where emotional support animals 
provide assistance that is unique to residential settings. The 
Department believes, however, that the presence of such animals is 
not required in the context of title II entities such as 
courthouses, State and local government administrative buildings, 
and similar title II facilities.
    Under the Department's previous regulatory framework, some 
individuals and entities assumed that the requirement that service 
animals must be individually trained to do work or perform tasks 
excluded all individuals with mental disabilities from having 
service animals. Others assumed that any person with a psychiatric 
condition whose pet provided comfort to them was covered by the 1991 
title II regulation. The Department reiterates that psychiatric 
service animals that are trained to do work or perform a task for 
individuals whose disability is covered by the ADA are protected by 
the Department's present regulatory approach. Psychiatric service 
animals can be trained to perform a variety of tasks that assist 
individuals with disabilities to detect the onset of psychiatric 
episodes and ameliorate their effects. Tasks performed by 
psychiatric service animals may include reminding the handler to 
take medicine, providing safety checks or room searches for persons 
with PTSD, interrupting self-mutilation, and removing disoriented 
individuals from dangerous situations.
    The difference between an emotional support animal and a 
psychiatric service animal is the work or tasks that the animal 
performs. Traditionally, service dogs worked as guides for 
individuals who were blind or had low vision. Since the original 
regulation was promulgated, service animals have been trained to 
assist individuals with many different types of disabilities.
    In the final rule, the Department has retained its position on 
the exclusion of emotional support animals from the definition of 
``service animal.'' The definition states that ``[t]he provision of 
emotional support, well-being, comfort, or companionship, * * * 
do[es] not constitute work or tasks for the purposes of this 
definition.'' The Department notes, however, that the exclusion of 
emotional support animals from coverage in the final rule does not 
mean that individuals with psychiatric or mental disabilities cannot 
use service animals that meet the regulatory definition. The final 
rule defines service animal as follows: ``[s]ervice animal means any 
dog that is individually trained to do work or perform tasks for the 
benefit of an individual with a disability, including a physical, 
sensory, psychiatric, intellectual, or other mental disability.'' 
This language simply clarifies the Department's longstanding 
position.
    The Department's position is based on the fact that the title II 
and title III regulations govern a wider range of public settings 
than the housing and transportation settings for which the 
Department of Housing and Urban Development (HUD) and DOT 
regulations allow emotional support animals or comfort animals. The 
Department recognizes that there are situations not governed by the 
title II and title III regulations, particularly in the context of 
residential settings and transportation, where there may be a legal 
obligation to permit the use of animals that do not qualify as 
service animals under the ADA, but whose presence nonetheless 
provides necessary emotional support to persons with disabilities. 
Accordingly, other Federal agency regulations, case law, and 
possibly State or local laws governing those situations may provide 
appropriately for increased access for animals other than service 
animals as defined under the ADA. Public officials, housing 
providers, and others who make decisions relating to animals in 
residential and transportation settings should consult the Federal, 
State, and local laws that apply in those areas (e.g., the FHAct 
regulations of HUD and the ACAA) and not rely on the ADA as a basis 
for reducing those obligations.
    Retain term ``service animal.'' Some commenters asserted that 
the term ``assistance animal'' is a term of art and should replace 
the term ``service animal.'' However, the majority of commenters 
preferred the term ``service animal'' because it is more specific. 
The Department has decided to retain the term ``service animal'' in 
the final rule. While some agencies, like HUD, use the term 
``assistance animal,'' ``assistive animal,'' or ``support animal,'' 
these terms are used to denote a broader category of animals than is 
covered by the ADA. The Department has decided that changing the 
term used in the final rule would create confusion, particularly in 
view of the broader parameters for coverage under the FHAct, cf., 
preamble to HUD's Final Rule for Pet Ownership for the Elderly and 
Persons with Disabilities, 73 FR 63834-38 (Oct. 27, 2008); HUD 
Handbook No. 4350.3 Rev-1, Chapter 2, Occupancy Requirements of 
Subsidized Multifamily Housing Programs (June 2007), available at 
http://www.hud.gov/offices/adm/hudclips/handbooks/hsgh/4350.3 (last 
visited June 24, 2010). Moreover, as discussed above, the 
Department's definition of ``service animal'' in the title II final 
rule does not affect the rights of individuals with disabilities who 
use assistance animals in their homes under the FHAct or who use 
``emotional support animals'' that are covered under the ACAA and 
its implementing regulations. See 14 CFR 382.7 et seq.; see also 
Department of Transportation, Guidance Concerning Service Animals in 
Air Transportation, 68 FR 24874, 24877 (May 9, 2003) (discussing 
accommodation of service animals and emotional support animals on 
aircraft).

``Video Remote Interpreting'' (VRI) Services

    In the NPRM, the Department proposed adding Video Interpreting 
Services (VIS) to the list of auxiliary aids available to provide 
effective communication described in Sec.  35.104. In the preamble 
to the NPRM, VIS was defined as ``a technology composed of a video 
phone, video monitors, cameras, a high-speed Internet connection, 
and an interpreter. The video phone provides video transmission to a 
video monitor that permits the individual who is deaf or hard of 
hearing to view and sign to a video interpreter (i.e., a live 
interpreter in another location), who can see and sign to the 
individual through a camera located on or near the monitor, while 
others can communicate by speaking. The video monitor can display a 
split screen of two live images, with the interpreter in one image 
and the individual who is deaf or hard of hearing in the other 
image.'' 73 FR 34446, 34479 (June 17, 2008). Comments from advocacy 
organizations and individuals unanimously requested that the 
Department use the term ``video remote interpreting (VRI),'' instead 
of VIS, for consistency with Federal Communications Commission (FCC) 
regulations. See FCC Public Notice, DA-0502417 (Sept. 7, 2005), and 
with common usage by consumers. The Department has made that change 
throughout the regulation to avoid confusion and to make the 
regulation more consistent with existing regulations.
    Many commenters also requested that the Department distinguish 
between VRI and ``video relay service (VRS).'' Both VRI and VRS use 
a remote interpreter who is able to see and communicate with a deaf 
person and a hearing person, and all three individuals may be 
connected by a video link. VRI is a fee-based interpreting service 
conveyed via videoconferencing where at least one person,

[[Page 56196]]

typically the interpreter, is at a separate location. VRI can be 
provided as an on-demand service or by appointment. VRI normally 
involves a contract in advance for the interpreter who is usually 
paid by the covered entity.
    VRS is a telephone service that enables persons with 
disabilities to use the telephone to communicate using video 
connections and is a more advanced form of relay service than the 
traditional voice to text telephones (TTY) relay systems that were 
recognized in the 1991 title II regulation. More specifically, VRS 
is a video relay service using interpreters connected to callers by 
video hook-up and is designed to provide telephone services to 
persons who are deaf and use American Sign Language that are 
functionally equivalent to those provided to users who are hearing. 
VRS is funded through the Interstate Telecommunications Relay 
Services Fund and overseen by the FCC. See 47 CFR 64.601(a)(26). 
There are no fees for callers to use the VRS interpreters and the 
video connection, although there may be relatively inexpensive 
initial costs to the title II entities to purchase the videophone or 
camera for on-line video connection, or other equipment to connect 
to the VRS service. The FCC has made clear that VRS functions as a 
telephone service and is not intended to be used for interpreting 
services where both parties are in the same room; the latter is 
reserved for VRI. The Department agrees that VRS cannot be used as a 
substitute for in-person interpreters or for VRI in situations that 
would not, absent one party's disability, entail use of the 
telephone.
    Many commenters strongly recommended limiting the use of VRI to 
circumstances where it will provide effective communication. 
Commenters from advocacy groups and persons with disabilities 
expressed concern that VRI may not always be appropriate to provide 
effective communication, especially in hospitals and emergency 
rooms. Examples were provided of patients who are unable to see the 
video monitor because they are semi-conscious or unable to focus on 
the video screen; other examples were given of cases where the video 
monitor is out of the sightline of the patient or the image is out 
of focus; still other examples were given of patients who could not 
see the image because the signal was interrupted, causing unnatural 
pauses in the communication, or the image was grainy or otherwise 
unclear. Many commenters requested more explicit guidelines on the 
use of VRI, and some recommended requirements for equipment 
maintenance, high-speed, wide-bandwidth video links using dedicated 
lines or wireless systems, and training of staff using VRI, 
especially in hospital and health care situations. Several major 
organizations requested a requirement to include the interpreter's 
face, head, arms, hands, and eyes in all transmissions. Finally, one 
State agency asked for additional guidance, outreach, and mandated 
advertising about the availability of VRI in title II situations so 
that local government entities would budget for and facilitate the 
use of VRI in libraries, schools, and other places.
    After consideration of the comments and the Department's own 
research and experience, the Department has determined that VRI can 
be an effective method of providing interpreting services in certain 
circumstances, but not in others. For example, VRI should be 
effective in many situations involving routine medical care, as well 
as in the emergency room where urgent care is important, but no in-
person interpreter is available; however, VRI may not be effective 
in situations involving surgery or other medical procedures where 
the patient is limited in his or her ability to see the video 
screen. Similarly, VRI may not be effective in situations where 
there are multiple people in a room and the information exchanged is 
highly complex and fast-paced. The Department recognizes that in 
these and other situations, such as where communication is needed 
for persons who are deaf-blind, it may be necessary to summon an in-
person interpreter to assist certain individuals. To ensure that VRI 
is effective in situations where it is appropriate, the Department 
has established performance standards in Sec.  35.160(d).

Subpart B--General Requirements

Section 35.130(h) Safety.

    Section 36.301(b) of the 1991 title III regulation provides that 
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.'' 28 CFR 
36.301(b). Although the 1991 title II regulation did not include 
similar language, the Department's 1993 ADA Title II Technical 
Assistance Manual at II-3.5200 makes clear the Department's view 
that public entities also have the right to impose legitimate safety 
requirements necessary for the safe operation of services, programs, 
or activities. To ensure consistency between the title II and title 
III regulations, the Department has added a new Sec.  35.130(h) in 
the final rule incorporating this longstanding position relating to 
imposition of legitimate safety requirements.

Section 35.133 Maintenance of accessible features.

    Section 35.133 in the 1991 title II regulation provides that a 
public entity must maintain in operable working condition those 
features of facilities and equipment that are required to be readily 
accessible to and usable by qualified individuals with disabilities. 
See 28 CFR 35.133(a). In the NPRM, the Department clarified the 
application of this provision and proposed one change to the section 
to address the discrete situation in which the scoping requirements 
provided in the 2010 Standards reduce the number of required 
elements below the requirements of the 1991 Standards. In that 
discrete event, a public entity may reduce such accessible features 
in accordance with the requirements in the 2010 Standards.
    The Department received only four comments on this proposed 
amendment. None of the commenters opposed the change. In the final 
rule, the Department has revised the section to make it clear that 
if the 2010 Standards reduce either the technical requirements or 
the number of required accessible elements below that required by 
the 1991 Standards, then the public entity may reduce the technical 
requirements or the number of accessible elements in a covered 
facility in accordance with the requirements of the 2010 Standards.
    One commenter urged the Department to amend Sec.  35.133(b) to 
expand the language of the section to restocking of shelves as a 
permissible activity for isolated or temporary interruptions in 
service or access. It is the Department's position that a temporary 
interruption that blocks an accessible route, such as restocking of 
shelves, is already permitted by Sec.  35.133(b), which clarifies 
that ``isolated or temporary interruptions in service or access due 
to maintenance or repairs'' are permitted. Therefore, the Department 
will not make any additional changes in the final rule to the 
language of Sec.  35.133(b) other than those discussed in the 
preceding paragraph.

Section 35.136 Service animals.

    The 1991 title II regulation states that ``[a] public entity 
shall make reasonable modifications in policies, practices, or 
procedures when the modifications are necessary to avoid 
discrimination on the basis of disability, unless the public entity 
can demonstrate that making the modifications would fundamentally 
alter the nature of the service, program or activity.'' 28 CFR 
130(b)(7). Unlike the title III regulation, the 1991 title II 
regulation did not contain a specific provision addressing service 
animals.
    In the NPRM, the Department stated the intention of providing 
the broadest feasible access to individuals with disabilities and 
their service animals, unless a public entity can demonstrate that 
making the modifications to policies excluding animals would 
fundamentally alter the nature of the public entity's service, 
program, or activity. The Department proposed creating a new Sec.  
35.136 addressing service animals that was intended to retain the 
scope of the 1991 title III regulation at Sec.  36.302(c), while 
clarifying the Department's longstanding policies and 
interpretations, as outlined in published technical assistance, 
Commonly Asked Questions About Service Animals in Places of Business 
(1996), available at http://www.ada.gov/qasrvc.ftm and ADA Guide for 
Small Businesses (1999), available at http://www.ada.gov/smbustxt.htm, and to add that a public entity may exclude a service 
animal in certain circumstances where the service animal fails to 
meet certain behavioral standards. The Department received extensive 
comments in response to proposed Sec.  35.136 from individuals, 
disability advocacy groups, organizations involved in training 
service animals, and public entities. Those comments and the 
Department's response are discussed below.
    Exclusion of service animals. In the NPRM, the Department 
proposed incorporating the title III regulatory language of Sec.  
36.302(c) into new Sec.  35.136(a), which states that ``[g]enerally, 
a public entity shall modify its policies, practices, or procedures 
to permit

[[Page 56197]]

the use of a service animal by an individual with a disability, 
unless the public entity can demonstrate that the use of a service 
animal would fundamentally alter the public entity's service, 
program, or activity.'' The final rule retains this language with 
some modifications.
    In addition, in the NPRM, the Department proposed clarifying 
those circumstances where otherwise eligible service animals may be 
excluded by public entities from their programs or facilities. The 
Department proposed in Sec.  35.136(b)(1) of the NPRM that a public 
entity may ask an individual with a disability to remove a service 
animal from a title II service, program, or activity if: ``[t]he 
animal is out of control and the animal's handler does not take 
effective action to control it.'' 73 FR 34466, 34504 (June 17, 
2008).
    The Department has long held that a service animal must be under 
the control of the handler at all times. Commenters overwhelmingly 
were in favor of this language, but noted that there are occasions 
when service animals are provoked to disruptive or aggressive 
behavior by agitators or troublemakers, as in the case of a blind 
individual whose service dog is taunted or pinched. While all 
service animals are trained to ignore and overcome these types of 
incidents, misbehavior in response to provocation is not always 
unreasonable. In circumstances where a service animal misbehaves or 
responds reasonably to a provocation or injury, the public entity 
must give the handler a reasonable opportunity to gain control of 
the animal. Further, if the individual with a disability asserts 
that the animal was provoked or injured, or if the public entity 
otherwise has reason to suspect that provocation or injury has 
occurred, the public entity should seek to determine the facts and, 
if provocation or injury occurred, the public entity should take 
effective steps to prevent further provocation or injury, which may 
include asking the provocateur to leave the public entity. This 
language is unchanged in the final rule.
    The NPRM also proposed language at Sec.  35.136(b)(2) to permit 
a public entity to exclude a service animal if the animal is not 
housebroken (i.e., trained so that, absent illness or accident, the 
animal controls its waste elimination) or the animal's presence or 
behavior fundamentally alters the nature of the service the public 
entity provides (e.g., repeated barking during a live performance). 
Several commenters were supportive of this NPRM language, but 
cautioned against overreaction by the public entity in these 
instances. One commenter noted that animals get sick, too, and that 
accidents occasionally happen. In these circumstances, simple clean 
up typically addresses the incident. Commenters noted that the 
public entity must be careful when it excludes a service animal on 
the basis of ``fundamental alteration,'' asserting for example that 
a public entity should not exclude a service animal for barking in 
an environment where other types of noise, such as loud cheering or 
a child crying, is tolerated. The Department maintains that the 
appropriateness of an exclusion can be assessed by reviewing how a 
public entity addresses comparable situations that do not involve a 
service animal. The Department has retained in Sec.  35.136(b) of 
the final rule the exception requiring animals to be housebroken. 
The Department has not retained the specific NPRM language stating 
that animals can be excluded if their presence or behavior 
fundamentally alters the nature of the service provided by the 
public entity, because the Department believes that this exception 
is covered by the general reasonable modification requirement 
contained in Sec.  35.130(b)(7).
    The NPRM also proposed at Sec.  35.136(b)(3) that a service 
animal can be excluded where ``[t]he animal poses a direct threat to 
the health or safety of others that cannot be eliminated by 
reasonable modifications.'' 73 FR 34466, 34504 (June 17, 2008). 
Commenters were universally supportive of this provision as it makes 
express the discretion of a public entity to exclude a service 
animal that poses a direct threat. Several commenters cautioned 
against the overuse of this provision and suggested that the 
Department provide an example of the rule's application. The 
Department has decided not to include regulatory language 
specifically stating that a service animal can be excluded if it 
poses a direct threat. The Department believes that the addition of 
new Sec.  35.139, which incorporates the language of the title III 
provisions at Sec.  36.302 relating to the general defense of direct 
threat, is sufficient to establish the availability of this defense 
to public entities.
    Access to a public entity following the proper exclusion of a 
service animal. The NPRM proposed that in the event a public entity 
properly excludes a service animal, the public entity must give the 
individual with a disability the opportunity to access the programs, 
services, and facilities of the public entity without the service 
animal. Most commenters welcomed this provision as a common sense 
approach. These commenters noted that they do not wish to preclude 
individuals with disabilities from the full and equal enjoyment of 
the State or local government's programs, services, or facilities, 
simply because of an isolated problem with a service animal. The 
Department has elected to retain this provision in Sec.  35.136(a).
    Other requirements. The NPRM also proposed that the regulation 
include the following requirements: that the work or tasks performed 
by the service animal must be directly related to the handler's 
disability; that a service animal must be individually trained to do 
work or perform a task, be housebroken, and be under the control of 
the handler; and that a service animal must have a harness, leash, 
or other tether. Most commenters addressed at least one of these 
issues in their responses. Most agreed that these provisions are 
important to clarify further the 1991 service animal regulation. The 
Department has moved the requirement that the work or tasks 
performed by the service animal must be related directly to the 
handler's disability to the definition of ``service animal'' in 
Sec.  35.104. In addition, the Department has modified the proposed 
language in Sec.  35.136(d) relating to the handler's control of the 
animal with a harness, leash, or other tether to state that ``[a] 
service animal shall have a harness, leash, or other tether, unless 
either the handler is unable because of a disability to use a 
harness, leash, or other tether, or the use of a harness, leash, or 
other tether would interfere with the service animal's safe, 
effective performance of work or tasks, in which case the service 
animal must be otherwise under the handler's control (e.g., voice 
control, signals, or other effective means).'' The Department has 
retained the requirement that the service animal must be 
individually trained (see Appendix A discussion of Sec.  35.104, 
definition of ``service animal''), as well as the requirement that 
the service animal be housebroken.
    Responsibility for supervision and care of a service animal. The 
NPRM proposed language at Sec.  35.136(e) stating that ``[a] public 
entity is not responsible for caring for or supervising a service 
animal.'' 73 FR 34466, 34504 (June 17, 2008). Most commenters did 
not address this particular provision. The Department recognizes 
that there are occasions when a person with a disability is confined 
to bed in a hospital for a period of time. In such an instance, the 
individual may not be able to walk or feed the service animal. In 
such cases, if the individual has a family member, friend, or other 
person willing to take on these responsibilities in the place of the 
individual with disabilities, the individual's obligation to be 
responsible for the care and supervision of the service animal would 
be satisfied. The language of this section is retained, with minor 
modifications, in Sec.  35.136(e) of the final rule.
    Inquiries about service animals. The NPRM proposed language at 
Sec.  35.136(f) setting forth parameters about how a public entity 
may determine whether an animal qualifies as a service animal. The 
proposed section stated that a public entity may ask if the animal 
is required because of a disability and what task or work the animal 
has been trained to do but may not require proof of service animal 
certification or licensing. Such inquiries are limited to eliciting 
the information necessary to make a decision without requiring 
disclosure of confidential disability-related information that a 
State or local government entity does not need. This language is 
consistent with the policy guidance outlined in two Department 
publications, Commonly Asked Questions about Service Animals in 
Places of Business (1996), available at http://www.ada.gov/qasrvc.htm, and ADA Guide for Small Businesses, (1999), available at 
http://www.ada.gov/smbustxt.htm.
    Although some commenters contended that the NPRM service animal 
provisions leave unaddressed the issue of how a public entity can 
distinguish between a psychiatric service animal, which is covered 
under the final rule, and a comfort animal, which is not, other 
commenters noted that the Department's published guidance has helped 
public entities to distinguish between service animals and pets on 
the basis of an individual's response to these questions. 
Accordingly, the Department has retained the NPRM language 
incorporating its guidance concerning the permissible questions into 
the final rule.
    Some commenters suggested that a title II entity be allowed to 
require current

[[Page 56198]]

documentation, no more than one year old, on letterhead from a 
mental health professional stating the following: (1) That the 
individual seeking to use the animal has a mental health-related 
disability; (2) that having the animal accompany the individual is 
necessary to the individual's mental health or treatment or to 
assist the person otherwise; and (3) that the person providing the 
assessment of the individual is a licensed mental health 
professional and the individual seeking to use the animal is under 
that individual's professional care. These commenters asserted that 
this will prevent abuse and ensure that individuals with legitimate 
needs for psychiatric service animals may use them. The Department 
believes that this proposal would treat persons with psychiatric, 
intellectual, and other mental disabilities less favorably than 
persons with physical or sensory disabilities. The proposal would 
also require persons with disabilities to obtain medical 
documentation and carry it with them any time they seek to engage in 
ordinary activities of daily life in their communities--something 
individuals without disabilities have not been required to do. 
Accordingly, the Department has concluded that a documentation 
requirement of this kind would be unnecessary, burdensome, and 
contrary to the spirit, intent, and mandates of the ADA.
    Areas of a public entity open to the public, participants in 
services, programs, or activities, or invitees. The NPRM proposed at 
Sec.  35.136(g) that an individual with a disability who uses a 
service animal has the same right of access to areas of a title II 
entity as members of the public, participants in services, programs, 
or activities, or invitees. Commenters indicated that allowing 
individuals with disabilities to go with their service animals into 
the same areas as members of the public, participants in programs, 
services, or activities, or invitees is accepted practice by most 
State and local government entities. The Department has included a 
slightly modified version of this provision in Sec.  35.136(g) of 
the final rule.
    The Department notes that under the final rule, a healthcare 
facility must also permit a person with a disability to be 
accompanied by a service animal in all areas of the facility in 
which that person would otherwise be allowed. There are some 
exceptions, however. The Department follows the guidance of the 
Centers for Disease Control and Prevention (CDC) on the use of 
service animals in a hospital setting. Zoonotic diseases can be 
transmitted to humans through bites, scratches, direct contact, 
arthropod vectors, or aerosols.
    Consistent with CDC guidance, it is generally appropriate to 
exclude a service animal from limited-access areas that employ 
general infection-control measures, such as operating rooms and burn 
units. See Centers for Disease Control and Prevention, Guidelines 
for Environmental Infection Control in Health-Care Facilities: 
Recommendations of CDC and the Healthcare Infection Control 
Practices Advisory Committee (June 2003), available at http://www.cdc.gov/hicpac/pdf/guidelines/eic_in_HCF_03.pdf (last visited 
June 24, 2010). A service animal may accompany its handler to such 
areas as admissions and discharge offices, the emergency room, 
inpatient and outpatient rooms, examining and diagnostic rooms, 
clinics, rehabilitation therapy areas, the cafeteria and vending 
areas, the pharmacy, restrooms, and all other areas of the facility 
where healthcare personnel, patients, and visitors are permitted 
without added precaution.
    Prohibition against surcharges for use of a service animal. In 
the NPRM, the Department proposed to incorporate the previously 
mentioned policy guidance, which prohibits the assessment of a 
surcharge for the use of a service animal, into proposed Sec.  
35.136(h). Several commenters agreed that this provision makes clear 
the obligation of a public entity to admit an individual with a 
service animal without surcharges, and that any additional costs 
imposed should be factored into the overall cost of administering a 
program, service, or activity, and passed on as a charge to all 
participants, rather than an individualized surcharge to the service 
animal user. Commenters also noted that service animal users cannot 
be required to comply with other requirements that are not generally 
applicable to other persons. If a public entity normally charges 
individuals for the damage they cause, an individual with a 
disability may be charged for damage caused by his or her service 
animal. The Department has retained this language, with minor 
modifications, in the final rule at Sec.  35.136(h).
    Training requirement. Certain commenters recommended the 
adoption of formal training requirements for service animals. The 
Department has rejected this approach and will not impose any type 
of formal training requirements or certification process, but will 
continue to require that service animals be individually trained to 
do work or perform tasks for the benefit of an individual with a 
disability. While some groups have urged the Department to modify 
this position, the Department has determined that such a 
modification would not serve the full array of individuals with 
disabilities who use service animals, since individuals with 
disabilities may be capable of training, and some have trained, 
their service animal to perform tasks or do work to accommodate 
their disability. A training and certification requirement would 
increase the expense of acquiring a service animal and might limit 
access to service animals for individuals with limited financial 
resources.
    Some commenters proposed specific behavior or training standards 
for service animals, arguing that without such standards, the public 
has no way to differentiate between untrained pets and service 
animals. Many of the suggested behavior or training standards were 
lengthy and detailed. The Department believes that this rule 
addresses service animal behavior sufficiently by including 
provisions that address the obligations of the service animal user 
and the circumstances under which a service animal may be excluded, 
such as the requirements that an animal be housebroken and under the 
control of its handler.
    Miniature horses. The Department has been persuaded by 
commenters and the available research to include a provision that 
would require public entities to make reasonable modifications to 
policies, practices, or procedures to permit the use of a miniature 
horse by a person with a disability if the miniature horse has been 
individually trained to do work or perform tasks for the benefit of 
the individual with a disability. The traditional service animal is 
a dog, which has a long history of guiding individuals who are blind 
or have low vision, and over time dogs have been trained to perform 
an even wider variety of services for individuals with all types of 
disabilities. However, an organization that developed a program to 
train miniature horses, modeled on the program used for guide dogs, 
began training miniature horses in 1991.
    Although commenters generally supported the species limitations 
proposed in the NPRM, some were opposed to the exclusion of 
miniature horses from the definition of a service animal. These 
commenters noted that these animals have been providing assistance 
to persons with disabilities for many years. Miniature horses were 
suggested by some commenters as viable alternatives to dogs for 
individuals with allergies, or for those whose religious beliefs 
preclude the use of dogs. Another consideration mentioned in favor 
of the use of miniature horses is the longer life span and strength 
of miniature horses in comparison to dogs. Specifically, miniature 
horses can provide service for more than 25 years while dogs can 
provide service for approximately 7 years, and, because of their 
strength, miniature horses can provide services that dogs cannot 
provide. Accordingly, use of miniature horses reduces the cost 
involved to retire, replace, and train replacement service animals.
    The miniature horse is not one specific breed, but may be one of 
several breeds, with distinct characteristics that produce animals 
suited to service animal work. The animals generally range in height 
from 24 inches to 34 inches measured to the withers, or shoulders, 
and generally weigh between 70 and 100 pounds. These characteristics 
are similar to those of large breed dogs such as Labrador 
Retrievers, Great Danes, and Mastiffs. Similar to dogs, miniature 
horses can be trained through behavioral reinforcement to be 
``housebroken.'' Most miniature service horse handlers and 
organizations recommend that when the animals are not doing work or 
performing tasks, the miniature horses should be kept outside in a 
designated area, instead of indoors in a house.
    According to information provided by an organization that trains 
service horses, these miniature horses are trained to provide a wide 
array of services to their handlers, primarily guiding individuals 
who are blind or have low vision, pulling wheelchairs, providing 
stability and balance for individuals with disabilities that impair 
the ability to walk, and supplying leverage that enables a person 
with a mobility disability to get up after a fall. According to the 
commenter, miniature horses are particularly effective for large 
stature individuals. The animals can be trained to stand (and in 
some cases, lie down) at the handler's feet in venues where space is 
at a premium, such as

[[Page 56199]]

assembly areas or inside some vehicles that provide public 
transportation. Some individuals with disabilities have traveled by 
train and have flown commercially with their miniature horses.
    The miniature horse is not included in the definition of service 
animal, which is limited to dogs. However, the Department has added 
a specific provision at Sec.  35.136(i) of the final rule covering 
miniature horses. Under this provision, a public entity must make 
reasonable modifications in policies, practices, or procedures to 
permit the use of a miniature horse by an individual with a 
disability if the miniature horse has been individually trained to 
do work or perform tasks for the benefit of the individual with a 
disability. The public entity may take into account a series of 
assessment factors in determining whether to allow a miniature horse 
into a specific facility. These include the type, size, and weight 
of the miniature horse; whether the handler has sufficient control 
of the miniature horse; whether the miniature horse is housebroken; 
and whether the miniature horse's presence in a specific facility 
compromises legitimate safety requirements that are necessary for 
safe operation. In addition, paragraphs (c)-(h) of this section, 
which are applicable to dogs, also apply to miniature horses.
    Ponies and full-size horses are not covered by Sec.  35.136(i). 
Also, because miniature horses can vary in size and can be larger 
and less flexible than dogs, covered entities may exclude this type 
of service animal if the presence of the miniature horse, because of 
its larger size and lower level of flexibility, results in a 
fundamental alteration to the nature of the programs activities, or 
services provided.

Section 35.137 Mobility devices.

    Section 35.137 of the NPRM clarified the scope and circumstances 
under which covered entities are legally obligated to accommodate 
various ``mobility devices.'' Section 35.137 set forth specific 
requirements for the accommodation of ``mobility devices,'' 
including wheelchairs, manually-powered mobility aids, and other 
power-driven mobility devices.
    In both the NPRM and the final rule, Sec.  35.137(a) states the 
general rule that in any areas open to pedestrians, public entities 
shall permit individuals with mobility disabilities to use 
wheelchairs and manually-powered mobility aids, including walkers, 
crutches, canes, braces, or similar devices. Because mobility 
scooters satisfy the definition of ``wheelchair'' (i.e., ``manually-
operated or power-driven device designed primarily for use by an 
individual with a mobility disability for the main purpose of 
indoor, or of both indoor and outdoor locomotion''), the reference 
to them in Sec.  35.137(a) of the final rule has been omitted to 
avoid redundancy.
    Some commenters expressed concern that permitting the use of 
other power-driven mobility devices by individuals with mobility 
disabilities would make such devices akin to wheelchairs and would 
require them to make physical changes to their facilities to 
accommodate their use. This concern is misplaced. If a facility 
complies with the applicable design requirements in the 1991 
Standards or the 2010 Standards, the public entity will not be 
required to exceed those standards to accommodate the use of 
wheelchairs or other power-driven mobility devices that exceed those 
requirements.
    Legal standard for other power-driven mobility devices. The NPRM 
version of Sec.  35.137(b) provided that ``[a] public entity shall 
make reasonable modifications in its policies, practices, and 
procedures to permit the use of other power-driven mobility devices 
by individuals with disabilities, unless the public entity can 
demonstrate that the use of the device is not reasonable or that its 
use will result in a fundamental alteration in the public entity's 
service, program, or activity.'' 73 FR 34466, 34505 (June 17, 2008). 
In other words, public entities are by default required to permit 
the use of other power-driven mobility devices; the burden is on 
them to prove the existence of a valid exception.
    Most commenters supported the notion of assessing whether the 
use of a particular device is reasonable in the context of a 
particular venue. Commenters, however, disagreed about the meaning 
of the word ``reasonable'' as it is used in Sec.  35.137(b) of the 
NPRM. Advocacy and nonprofit groups almost universally objected to 
the use of a general reasonableness standard with regard to the 
assessment of whether a particular device should be allowed at a 
particular venue. They argued that the assessment should be based on 
whether reasonable modifications could be made to allow a particular 
device at a particular venue, and that the only factors that should 
be part of the calculus that results in the exclusion of a 
particular device are undue burden, direct threat, and fundamental 
alteration.
    A few commenters opposed the proposed provision requiring public 
entities to assess whether reasonable modifications can be made to 
allow other power-driven mobility devices, preferring instead that 
the Department issue guidance materials so that public entities 
would not have to incur the cost of such analyses. Another commenter 
noted a ``fox guarding the hen house''-type of concern with regard 
to public entities developing and enforcing their own modification 
policy.
    In response to comments received, the Department has revised 
Sec.  35.137(b) to provide greater clarity regarding the development 
of legitimate safety requirements regarding other power-driven 
mobility devices and has added a new Sec.  35.130(h) (Safety) to the 
title II regulation which specifically permits public entities to 
impose legitimate safety requirements necessary for the safe 
operation of their services, programs, and activities. (See 
discussion below.) The Department has not retained the proposed NPRM 
language stating that an other power-driven mobility device can be 
excluded if a public entity can demonstrate that its use is 
unreasonable or will result in a fundamental alteration of the 
entity's service, program, or activity, because the Department 
believes that this exception is covered by the general reasonable 
modification requirement contained in Sec.  35.130(b)(7).
    Assessment factors. Section 35.137(c) of the NPRM required 
public entities to ``establish policies to permit the use of other 
power-driven mobility devices'' and articulated four factors upon 
which public entities must base decisions as to whether a 
modification is reasonable to allow the use of a class of other 
power-driven mobility devices by individuals with disabilities in 
specific venues (e.g., parks, courthouses, office buildings, etc.). 
73 FR 34466, 34504 (June 17, 2008).
    The Department has relocated and modified the NPRM text that 
appeared in Sec.  35.137(c) to new paragraph Sec.  35.137(b)(2) to 
clarify what factors the public entity shall use in determining 
whether a particular other power-driven mobility device can be 
allowed in a specific facility as a reasonable modification. Section 
35.137(b)(2) now states that ``[i]n determining whether a particular 
other power-driven mobility device can be allowed in a specific 
facility as a reasonable modification under (b)(1), a public entity 
shall consider'' certain enumerated factors. The assessment factors 
are designed to assist public entities in determining whether 
allowing the use of a particular other power-driven mobility device 
in a specific facility is reasonable. Thus, the focus of the 
analysis must be on the appropriateness of the use of the device at 
a specific facility, rather than whether it is necessary for an 
individual to use a particular device.
    The NPRM proposed the following specific assessment factors: (1) 
The dimensions, weight, and operating speed of the mobility device 
in relation to a wheelchair; (2) the potential risk of harm to 
others by the operation of the mobility device; (3) the risk of harm 
to the environment or natural or cultural resources or conflict with 
Federal land management laws and regulations; and (4) the ability of 
the public entity to stow the mobility device when not in use, if 
requested by the user.
    Factor 1 was designed to help public entities assess whether a 
particular device was appropriate, given its particular physical 
features, for a particular location. Virtually all commenters said 
the physical features of the device affected their view of whether a 
particular device was appropriate for a particular location. For 
example, while many commenters supported the use of another power-
driven mobility device if the device were a Segway[supreg] PT, 
because of environmental and health concerns they did not offer the 
same level of support if the device were an off-highway vehicle, 
all-terrain vehicle (ATV), golf car, or other device with a fuel-
powered or combustion engine. Most commenters noted that indicators 
such as speed, weight, and dimension really were an assessment of 
the appropriateness of a particular device in specific venues and 
suggested that factor 1 say this more specifically.
    The term ``in relation to a wheelchair'' in the NPRM's factor 1 
apparently created some concern that the same legal standards that 
apply to wheelchairs would be applied to other power-driven mobility 
devices. The Department has omitted the term ``in relation to a 
wheelchair'' from Sec.  35.137(b)(2)(i) to clarify that if a 
facility that is in compliance

[[Page 56200]]

with the applicable provisions of the 1991 Standards or the 2010 
Standards grants permission for an other power-driven mobility 
device to go on-site, it is not required to exceed those standards 
to accommodate the use of other power-driven mobility devices.
    In response to requests that NPRM factor 1 state more 
specifically that it requires an assessment of an other power-driven 
mobility device's appropriateness under particular circumstances or 
in particular venues, the Department has added several factors and 
more specific language. In addition, although the NPRM made 
reference to the operation of other power-driven mobility devices in 
``specific venues,'' the Department's intent is captured more 
clearly by referencing ``specific facility'' in paragraph (b)(2). 
The Department also notes that while speed is included in factor 1, 
public entities should not rely solely on a device's top speed when 
assessing whether the device can be accommodated; instead, public 
entities should also consider the minimum speeds at which a device 
can be operated and whether the development of speed limit policies 
can be established to address concerns regarding the speed of the 
device. Finally, since the ability of the public entity to stow the 
mobility device when not in use is an aspect of its design and 
operational characteristics, the text proposed as factor 4 in the 
NPRM has been incorporated in paragraph (b)(2)(iii).
    The NPRM's version of factor 2 provided that the ``risk of 
potential harm to others by the operation of the mobility device'' 
is one of the determinants in the assessment of whether other power-
driven mobility devices should be excluded from a site. The 
Department intended this requirement to be consistent with the 
Department's longstanding interpretation, expressed in Sec.  II-
3.5200 (Safety) of the 1993 Title II Technical Assistance Manual, 
which provides that public entities may ``impose legitimate safety 
requirements that are necessary for safe operation.'' (This language 
parallels the provision in the title III regulation at Sec.  
36.301(b).) However, several commenters indicated that they read 
this language, particularly the phrase ``risk of potential harm,'' 
to mean that the Department had adopted a concept of risk analysis 
different from that which is in the existing standards. The 
Department did not intend to create a new standard and has changed 
the language in paragraphs (b)(1) and (b)(2) to clarify the 
applicable standards, thereby avoiding the introduction of new 
assessments of risk beyond those necessary for the safe operation of 
the public entity. In addition, the Department has added a new 
section, 35.130(h), which incorporates the existing safety standard 
into the title II regulation.
    While all applicable affirmative defenses are available to 
public entities in the establishment and execution of their policies 
regarding other power-driven mobility devices, the Department did 
not explicitly incorporate the direct threat defense into the 
assessment factors because Sec.  35.130(h) provides public entities 
the appropriate framework with which to assess whether legitimate 
safety requirements that may preclude the use of certain other 
power-driven mobility devices are necessary for the safe operation 
of the public entities. In order to be legitimate, the safety 
requirement must be based on actual risks and not mere speculation 
regarding the device or how it will be operated. Of course, public 
entities may enforce legitimate safety rules established by the 
public entity for the operation of other power-driven mobility 
devices (e.g., reasonable speed restrictions). Finally, NPRM factor 
3 concerning environmental resources and conflicts of law has been 
relocated to Sec.  35.137(b)(2)(v).
    As a result of these comments and requests, NPRM factors 1, 2, 
3, and 4 have been revised and renumbered within paragraph (b)(2) in 
the final rule.
    Several commenters requested that the Department provide 
guidance materials or more explicit concepts of which considerations 
might be appropriate for inclusion in a policy that allows the use 
of other power-driven mobility devices. A public entity that has 
determined that reasonable modifications can be made in its 
policies, practices, or procedures to allow the use of other power-
driven mobility devices should develop a policy that clearly states 
the circumstances under which the use of other power-driven mobility 
devices by individuals with a mobility disability will be permitted. 
It also should include clear, concise statements of specific rules 
governing the operation of such devices. Finally, the public entity 
should endeavor to provide individuals with disabilities who use 
other power-driven mobility devices with advanced notice of its 
policy regarding the use of such devices and what rules apply to the 
operation of these devices.
    For example, the U.S. General Services Administration (GSA) has 
developed a policy allowing the use of the Segway[supreg] PT and 
other EPAMDs in all Federal buildings under GSA's jurisdiction. See 
General Services Administration, Interim Segway[supreg] Personal 
Transporter Policy (Dec. 3, 2007), available at http://www.gsa.gov/graphics/pbs/Interim_Segway_Policy_121007.pdf (last visited June 
24, 2010). The GSA policy defines the policy's scope of coverage by 
setting out what devices are and are not covered by the policy. The 
policy also sets out requirements for safe operation, such as a 
speed limit, prohibits the use of EPAMDs on escalators, and provides 
guidance regarding security screening of these devices and their 
operators.
    A public entity that determines that it can make reasonable 
modifications to permit the use of an other power-driven mobility 
device by an individual with a mobility disability might include in 
its policy the procedure by which claims that the other power-driven 
mobility device is being used for a mobility disability will be 
assessed for legitimacy (i.e., a credible assurance that the device 
is being used for a mobility disability, including a verbal 
representation by the person with a disability that is not 
contradicted by observable fact, or the presentation of a disability 
parking space placard or card, or State-issued proof of disability); 
the type or classes of other power-driven mobility devices are 
permitted to be used by individuals with mobility disabilities; the 
size, weight, and dimensions of the other power-driven mobility 
devices that are permitted to be used by individuals with mobility 
disabilities; the speed limit for the other power-driven mobility 
devices that are permitted to be used by individuals with mobility 
disabilities; the places, times, or circumstances under which the 
use of the other power-driven mobility device is or will be 
restricted or prohibited; safety, pedestrian, and other rules 
concerning the use of the other power-driven mobility device; 
whether, and under which circumstances, storage for the other power-
driven mobility device will be made available; and how and where 
individuals with a mobility disability can obtain a copy of the 
other power-driven mobility device policy.
    Public entities also might consider grouping other power-driven 
mobility devices by type (e.g., EPAMDs, golf cars, gasoline-powered 
vehicles, and other devices). For example, an amusement park may 
determine that it is reasonable to allow individuals with 
disabilities to use EPAMDs in a variety of outdoor programs and 
activities, but that it would not be reasonable to allow the use of 
golf cars as mobility devices in similar circumstances. At the same 
time, the entity may address its concerns about factors such as 
space limitations by disallowing use of EPAMDs by members of the 
general public who do not have mobility disabilities.
    The Department anticipates that, in many circumstances, public 
entities will be able to develop policies that will allow the use of 
other power-driven mobility devices by individuals with mobility 
disabilities. Consider the following example:
    A county courthouse has developed a policy whereby EPAMDs may be 
operated in the pedestrian areas of the courthouse if the operator 
of the device agrees not to operate the device faster than 
pedestrians are walking; to yield to pedestrians; to provide a rack 
or stand so that the device can stand upright; and to use the device 
only in courtrooms that are large enough to accommodate such 
devices. If the individual is selected for jury duty in one of the 
smaller courtrooms, the county's policy indicates that if it is not 
possible for the individual with the disability to park the device 
and walk into the courtroom, the location of the trial will be moved 
to a larger courtroom.
    Inquiry into the use of other power-driven mobility device. The 
NPRM version of Sec.  35.137(d) provided that ``[a] public entity 
may ask a person using a power-driven mobility device if the 
mobility device is needed due to the person's disability. A public 
entity shall not ask a person using a mobility device questions 
about the nature and extent of the person's disability.'' 73 FR 
34466, 34504 (June 17, 2008).
    Many environmental, transit system, and government commenters 
expressed concern about people feigning mobility disabilities to be 
able to use other power-driven mobility devices in public entities 
in which their use is otherwise restricted. These commenters felt 
that a mere inquiry into whether the device is being used for a 
mobility disability was an insufficient mechanism by which to detect 
fraud by other power-driven mobility

[[Page 56201]]

device users who do not have mobility disabilities. These commenters 
believed they should be given more latitude to make inquiries of 
other power-driven mobility device users claiming a mobility 
disability than they would be given for wheelchair users. They 
sought the ability to establish a policy or method by which public 
entities may assess the legitimacy of the mobility disability. They 
suggested some form of certification, sticker, or other designation. 
One commenter suggested a requirement that a sticker bearing the 
international symbol for accessibility be placed on the device or 
that some other identification be required to signal that the use of 
the device is for a mobility disability. Other suggestions included 
displaying a disability parking placard on the device or issuing 
EPAMDs, like the Segway[supreg] PT, a permit that would be similar 
to permits associated with parking spaces reserved for those with 
disabilities.
    Advocacy, nonprofit, and several individual commenters balked at 
the notion of allowing any inquiry beyond whether the device is 
necessary for a mobility disability and encouraged the Department to 
retain the NPRM's language on this topic. Other commenters, however, 
were empathetic with commenters who had concerns about fraud. At 
least one Segway[supreg] PT advocate suggested it would be 
permissible to seek documentation of the mobility disability in the 
form of a simple sign or permit.
    The Department has sought to find common ground by balancing the 
needs of public entities and individuals with mobility disabilities 
wishing to use other power-driven mobility devices with the 
Department's longstanding, well-established policy of not allowing 
public entities or establishments to require proof of a mobility 
disability. There is no question that public entities have a 
legitimate interest in ferreting out fraudulent representations of 
mobility disabilities, especially given the recreational use of 
other power-driven mobility devices and the potential safety 
concerns created by having too many such devices in a specific 
facility at one time. However, the privacy of individuals with 
mobility disabilities and respect for those individuals, is also 
vitally important.
    Neither Sec.  35.137(d) of the NPRM nor Sec.  35.137(c) of the 
final rule permits inquiries into the nature of a person's mobility 
disability. However, the Department does not believe it is 
unreasonable or overly intrusive for an individual with a mobility 
disability seeking to use an other power-driven mobility device to 
provide a credible assurance to verify that the use of the other 
power-driven mobility device is for a mobility disability. The 
Department sought to minimize the amount of discretion and 
subjectivity exercised by public entities in assessing whether an 
individual has a mobility disability and to allow public entities to 
verify the existence of a mobility disability. The solution was 
derived from comments made by several individuals who said they have 
been admitted with their Segway[supreg] PTs into public entities and 
public accommodations that ordinarily do not allow these devices on-
site when they have presented or displayed State-issued disability 
parking placards. In the examples provided by commenters, the 
parking placards were accepted as verification that the 
Segway[supreg] PTs were being used as mobility devices.
    Because many individuals with mobility disabilities avail 
themselves of State programs that issue disability parking placards 
or cards and because these programs have penalties for fraudulent 
representations of identity and disability, utilizing the parking 
placard system as a means to establish the existence of a mobility 
disability strikes a balance between the need for privacy of the 
individual and fraud protection for the public entity. Consequently, 
the Department has decided to include regulatory text in Sec.  
35.137(c)(2) of the final rule that requires public entities to 
accept the presentation of a valid, State-issued disability parking 
placard or card, or State-issued proof of disability, as 
verification that an individual uses the other power-driven mobility 
device for his or her mobility disability. A ``valid'' disability 
placard or card is one that is presented by the individual to whom 
it was issued and is otherwise in compliance with the State of 
issuance's requirements for disability placards or cards. Public 
entities are required to accept a valid, State-issued disability 
parking placard or card, or State-issued proof of disability as a 
credible assurance, but they cannot demand or require the 
presentation of a valid disability placard or card, or State-issued 
proof of disability, as a prerequisite for use of an other power-
driven mobility device, because not all persons with mobility 
disabilities have such means of proof. If an individual with a 
mobility disability does not have such a placard or card, or State-
issued proof of disability, he or she may present other information 
that would serve as a credible assurance of the existence of a 
mobility disability.
    In lieu of a valid, State-issued disability parking placard or 
card, or State-issued proof of disability, a verbal representation, 
not contradicted by observable fact, shall be accepted as a credible 
assurance that the other power-driven mobility device is being used 
because of a mobility disability. This does not mean, however, that 
a mobility disability must be observable as a condition for allowing 
the use of an other power-driven mobility device by an individual 
with a mobility disability, but rather that if an individual 
represents that a device is being used for a mobility disability and 
that individual is observed thereafter engaging in a physical 
activity that is contrary to the nature of the represented 
disability, the assurance given is no longer credible and the 
individual may be prevented from using the device.
    Possession of a valid, State-issued disability parking placard 
or card or a verbal assurance does not trump a public entity's valid 
restrictions on the use of other power-driven mobility devices. 
Accordingly, a credible assurance that the other power-driven 
mobility device is being used because of a mobility disability is 
not a guarantee of entry to a public entity because, notwithstanding 
such credible assurance, use of the device in a particular venue may 
be at odds with the legal standard in Sec.  35.137(b)(1) or with one 
or more of the Sec.  35.137(b)(2) factors. Only after an individual 
with a disability has satisfied all of the public entity's policies 
regarding the use of other power-driven mobility devices does a 
credible assurance become a factor in allowing the use of the 
device. For example, if an individual seeking to use an other power-
driven mobility device fails to satisfy any of the public entity's 
stated policies regarding the use of other power-driven mobility 
devices, the fact that the individual legitimately possesses and 
presents a valid, State-issued disability parking placard or card, 
or State-issued proof of disability, does not trump the policy and 
require the public entity to allow the use of the device. In fact, 
in some instances, the presentation of a legitimately held placard 
or card, or State-issued proof of disability, will have no relevance 
or bearing at all on whether the other power-driven mobility device 
may be used, because the public entity's policy does not permit the 
device in question on-site under any circumstances (e.g., because 
its use would create a substantial risk of serious harm to the 
immediate environment or natural or cultural resources). Thus, an 
individual with a mobility disability who presents a valid 
disability placard or card, or State-issued proof of disability, 
will not be able to use an ATV as an other power-driven mobility 
device in a State park if the State park has adopted a policy 
banning their use for any or all of the above-mentioned reasons. 
However, if a public entity permits the use of a particular other 
power-driven mobility device, it cannot refuse to admit an 
individual with a disability who uses that device if the individual 
has provided a credible assurance that the use of the device is for 
a mobility disability.

Section 35.138 Ticketing

    The 1991 title II regulation did not contain specific regulatory 
language on ticketing. The ticketing policies and practices of 
public entities, however, are subject to title II's 
nondiscrimination provisions. Through the investigation of 
complaints, enforcement actions, and public comments related to 
ticketing, the Department became aware that some venue operators, 
ticket sellers, and distributors were violating title II's 
nondiscrimination mandate by not providing individuals with 
disabilities the same opportunities to purchase tickets for 
accessible seating as they provided to spectators purchasing 
conventional seats. In the NPRM, the Department proposed Sec.  
35.138 to provide explicit direction and guidance on discriminatory 
practices for entities involved in the sale or distribution of 
tickets.
    The Department received comments from advocacy groups, assembly 
area trade associations, public entities, and individuals. Many 
commenters supported the addition of regulatory language pertaining 
to ticketing and urged the Department to retain it in the final 
rule. Several commenters, however, questioned why there were 
inconsistencies between the title II and title III provisions and 
suggested that the same language be used for both titles. The 
Department has decided to retain ticketing regulatory language and 
to ensure consistency between the ticketing provisions in title II 
and title III.

[[Page 56202]]

    Because many in the ticketing industry view season tickets and 
other multi-event packages differently from individual tickets, the 
Department bifurcated some season ticket provisions from those 
concerning single-event tickets in the NPRM. This structure, 
however, resulted in some provisions being repeated for both types 
of tickets but not for others even though they were intended to 
apply to both types of tickets. The result was that it was not 
entirely clear that some of the provisions that were not repeated 
also were intended to apply to season tickets. The Department is 
addressing the issues raised by these commenters using a different 
approach. For the purposes of this section, a single event refers to 
an individual performance for which tickets may be purchased. In 
contrast, a series of events includes, but is not limited to, 
subscription events, event packages, season tickets, or any other 
tickets that may be purchased for multiple events of the same type 
over the course of a specified period of time whose ownership right 
reverts to the public entity at the end of each season or time 
period. Series-of-events tickets that give their holders an enhanced 
ability to purchase such tickets from the public entity in seasons 
or periods of time that follow, such as a right of first refusal or 
higher ranking on waiting lists for more desirable seats, are 
subject to the provisions in this section. In addition, the final 
rule merges together some NPRM paragraphs that dealt with related 
topics and has reordered and renamed some of the paragraphs that 
were in the NPRM.
    Ticket sales. In the NPRM, the Department proposed, in Sec.  
35.138(a), a general rule that a public entity shall modify its 
policies, practices, or procedures to ensure that individuals with 
disabilities can purchase tickets for accessible seating for an 
event or series of events in the same way as others (i.e., during 
the same hours and through the same distribution methods as other 
seating is sold). 73 FR 34466, 34504 (June 17, 2008). ``Accessible 
seating'' is defined in Sec.  35.138(a)(1) of the final rule to mean 
``wheelchair spaces and companion seats that comply with sections 
221 and 802 of the 2010 Standards along with any other seats 
required to be offered for sale to the individual with a disability 
pursuant to paragraph (d) of this section.'' The defined term does 
not include designated aisle seats. A ``wheelchair space'' refers to 
a space for a single wheelchair and its occupant.
    The NPRM proposed requiring that accessible seats be sold 
through the ``same methods of distribution'' as non-accessible 
seats. Comments from venue managers and others in the business 
community, in general, noted that multiple parties are involved in 
ticketing, and because accessible seats may not be allotted to all 
parties involved at each stage, such parties should be protected 
from liability. For example, one commenter noted that a third-party 
ticket vendor, like Ticketmaster, can only sell the tickets it 
receives from its client. Because Sec.  35.138(a)(2)(iii) of the 
final rule requires venue operators to make available accessible 
seating through the same methods of distribution they use for their 
regular tickets, venue operators that provide tickets to third-party 
ticket vendors are required to provide accessible seating to the 
third-party ticket vendor. This provision will enhance third-party 
ticket vendors' ability to acquire and sell accessible seating for 
sale in the future. The Department notes that once third-party 
ticket vendors acquire accessible tickets, they are obligated to 
sell them in accordance with these rules.
    The Department also has received frequent complaints that 
individuals with disabilities have not been able to purchase 
accessible seating over the Internet, and instead have had to engage 
in a laborious process of calling a customer service line, or 
sending an e-mail to a customer service representative and waiting 
for a response. Not only is such a process burdensome, but it puts 
individuals with disabilities at a disadvantage in purchasing 
tickets for events that are popular and may sell out in minutes. 
Because Sec.  35.138(e) of the final rule authorizes venues to 
release accessible seating in case of a sell-out, individuals with 
disabilities effectively could be cut off from buying tickets unless 
they also have the ability to purchase tickets in real time over the 
Internet. The Department's new regulatory language is designed to 
address this problem.
    Several commenters representing assembly areas raised concerns 
about offering accessible seating for sale over the Internet. They 
contended that this approach would increase the incidence of fraud 
since anyone easily could purchase accessible seating over the 
Internet. They also asserted that it would be difficult 
technologically to provide accessible seating for sale in real time 
over the Internet, or that to do so would require simplifying the 
rules concerning the purchase of multiple additional accompanying 
seats. Moreover, these commenters argued that requiring an 
individual purchasing accessible seating to speak with a customer 
service representative would allow the venue to meet the patron's 
needs most appropriately and ensure that wheelchair spaces are 
reserved for individuals with disabilities who require wheelchair 
spaces. Finally, these commenters argued that individuals who can 
transfer effectively and conveniently from a wheelchair to a seat 
with a movable armrest seat could instead purchase designated aisle 
seats.
    The Department considered these concerns carefully and has 
decided to continue with the general approach proposed in the NPRM. 
Although fraud is an important concern, the Department believes that 
it is best combated by other means that would not have the effect of 
limiting the ability of individuals with disabilities to purchase 
tickets, particularly since restricting the purchase of accessible 
seating over the Internet will, of itself, not curb fraud. In 
addition, the Department has identified permissible means for 
covered entities to reduce the incidence of fraudulent accessible 
seating ticket purchases in Sec.  35.138(h) of the final rule.
    Several commenters questioned whether ticket websites themselves 
must be accessible to individuals who are blind or have low vision, 
and if so, what that requires. The Department has consistently 
interpreted the ADA to cover websites that are operated by public 
entities and stated that such sites must provide their services in 
an accessible manner or provide an accessible alternative to the 
website that is available 24 hours a day, seven days a week. The 
final rule, therefore, does not impose any new obligation in this 
area. The accessibility of websites is discussed in more detail in 
the section of Appendix A entitled ``Other Issues.''
    In Sec.  35.138(b) of the NPRM, the Department also proposed 
requiring public entities to make accessible seating available 
during all stages of tickets sales including, but not limited to, 
presales, promotions, lotteries, waitlists, and general sales. For 
example, if tickets will be presold for an event that is open only 
to members of a fan club, or to holders of a particular credit card, 
then tickets for accessible seating must be made available for 
purchase through those means. This requirement does not mean that 
any individual with a disability would be able to purchase those 
seats. Rather, it means that an individual with a disability who 
meets the requirement for such a sale (e.g., who is a member of the 
fan club or holds that credit card) will be able to participate in 
the special promotion and purchase accessible seating. The 
Department has maintained the substantive provisions of the NPRM's 
Sec.  35.138(a) and (b) but has combined them in a single paragraph 
at Sec.  35.138(a)(2) of the final rule so that all of the 
provisions having to do with the manner in which tickets are sold 
are located in a single paragraph.
    Identification of available accessible seating. In the NPRM, the 
Department proposed Sec.  35.138(c), which, as modified and 
renumbered as paragraph (b)(3) in the final rule, requires a 
facility to identify available accessible seating through seating 
maps, brochures, or other methods if that information is made 
available about other seats sold to the general public. This rule 
requires public entities to provide information about accessible 
seating to the same degree of specificity that it provides 
information about general seating. For example, if a seating map 
displays color-coded blocks pegged to prices for general seating, 
then accessible seating must be similarly color-coded. Likewise, if 
covered entities provide detailed maps that show exact seating and 
pricing for general seating, they must provide the same for 
accessible seating.
    The NPRM did not specify a requirement to identify prices for 
accessible seating. The final rule requires that if such information 
is provided for general seating, it must be provided for accessible 
seating as well.
    In the NPRM, the Department proposed in Sec.  35.138(d) that a 
public entity, upon being asked, must inform persons with 
disabilities and their companions of the locations of all unsold or 
otherwise available seating. This provision is intended to prevent 
the practice of ``steering'' individuals with disabilities to 
certain accessible seating so that the facility can maximize 
potential ticket sales by releasing unsold accessible seating, 
especially in preferred or desirable locations, for sale to the 
general public. The Department received no significant comment on 
this proposal. The Department has retained this provision in the 
final rule but

[[Page 56203]]

has added it, with minor modifications, to Sec.  35.138(b) as 
paragraph (1).
    Ticket prices. In the NPRM, the Department proposed Sec.  
35.138(e) requiring that ticket prices for accessible seating be set 
no higher than the prices for other seats in that seating section 
for that event. The NPRM's provision also required that accessible 
seating be made available at every price range, and if an existing 
facility has barriers to accessible seating within a particular 
price range, a proportionate amount of seating (determined by the 
ratio of the total number of seats at that price level to the total 
number of seats in the assembly area) must be offered in an 
accessible location at that same price. Under this rule, for 
example, if a public entity has a 20,000-seat facility built in 1980 
with inaccessible seating in the $20-price category, which is on the 
upper deck, and it chooses not to put accessible seating in that 
section, then it must place a proportionate number of seats in an 
accessible location for $20. If the upper deck has 2,000 seats, then 
the facility must place 10 percent of its accessible seating in an 
accessible location for $20 provided that it is part of a seating 
section where ticket prices are equal to or more than $20--a 
facility may not place the $20-accessible seating in a $10-seating 
section. The Department received no significant comment on this 
rule, and it has been retained, as amended, in the final rule in 
Sec.  35.138(c).
    Purchase of multiple tickets. In the NPRM, the Department 
proposed Sec.  35.138(i) to address one of the most common ticketing 
complaints raised with the Department: That individuals with 
disabilities are not able to purchase more than two tickets. The 
Department proposed this provision to facilitate the ability of 
individuals with disabilities to attend events with friends, 
companions, or associates who may or may not have a disability by 
enabling individuals with disabilities to purchase the maximum 
number of tickets allowed per transaction to other spectators; by 
requiring venues to place accompanying individuals in general 
seating as close as possible to accessible seating (in the event 
that a group must be divided because of the large size of the 
group); and by allowing an individual with a disability to purchase 
up to three additional contiguous seats per wheelchair space if they 
are available at the time of sale. Section 35.138(i)(2) of the NPRM 
required that a group containing one or more wheelchair users must 
be placed together, if possible, and that in the event that the 
group could not be placed together, the individuals with 
disabilities may not be isolated from the rest of the group.
    The Department asked in the NPRM whether this rule was 
sufficient to effectuate the integration of individuals with 
disabilities. Many advocates and individuals praised it as a welcome 
and much-needed change, stating that the trade-off of being able to 
sit with their family or friends was worth reducing the number of 
seats available for individuals with disabilities. Some commenters 
went one step further and suggested that the number of additional 
accompanying seats should not be restricted to three.
    Although most of the substance of the proposed provision on the 
purchase of multiple tickets has been maintained in the final rule, 
it has been renumbered as Sec.  35.138(d), reorganized, and 
supplemented. To preserve the availability of accessible seating for 
other individuals with disabilities, the Department has not expanded 
the rule beyond three additional contiguous seats. Section 
35.138(d)(1) of the final rule requires public entities to make 
available for purchase three additional tickets for seats in the 
same row that are contiguous with the wheelchair space provided that 
at the time of the purchase there are three such seats available. 
The requirement that the additional seats be ``contiguous with the 
wheelchair space'' does not mean that each of the additional seats 
must be in actual contact or have a border in common with the 
wheelchair space; however, at least one of the additional seats 
should be immediately adjacent to the wheelchair space. The 
Department recognizes that it will often be necessary to use vacant 
wheelchair spaces to provide for contiguous seating.
    The Department has added paragraphs (d)(2) and (d)(3) to clarify 
that in situations where there are insufficient unsold seats to 
provide three additional contiguous seats per wheelchair space or a 
ticket office restricts sales of tickets to a particular event to 
less than four tickets per customer, the obligation to make 
available three additional contiguous seats per wheelchair space 
would be affected. For example, if at the time of purchase, there 
are only two additional contiguous seats available for purchase 
because the third has been sold already, then the ticket purchaser 
would be entitled to two such seats. In this situation, the public 
entity would be required to make up the difference by offering one 
additional ticket for sale that is as close as possible to the 
accessible seats. Likewise, if ticket purchases for an event are 
limited to two per customer, a person who uses a wheelchair who 
seeks to purchase tickets would be entitled to purchase only one 
additional contiguous seat for the event.
    The Department also has added paragraph (d)(4) to clarify that 
the requirement for three additional contiguous seats is not 
intended to serve as a cap if the maximum number of tickets that may 
be purchased by members of the general public exceeds the four 
tickets an individual with a disability ordinarily would be allowed 
to purchase (i.e., a wheelchair space and three additional 
contiguous seats). If the maximum number of tickets that may be 
purchased by members of the general public exceeds four, an 
individual with a disability is to be allowed to purchase the 
maximum number of tickets; however, additional tickets purchased by 
an individual with a disability beyond the wheelchair space and the 
three additional contiguous seats provided in Sec.  35.138(d)(1) do 
not have to be contiguous with the wheelchair space.
    The NPRM proposed at Sec.  35.138(i)(2) that for group sales, if 
a group includes one or more individuals who use a wheelchair, then 
the group shall be placed in a seating area with accessible seating 
so that, if possible, the group can sit together. If it is necessary 
to divide the group, it should be divided so that the individuals in 
the group who use wheelchairs are not isolated from the rest of the 
members of their group. The final rule retains the NPRM language in 
paragraph (d)(5).
    Hold-and-release of unsold accessible seating. The Department 
recognizes that not all accessible seating will be sold in all 
assembly areas for every event to individuals with disabilities who 
need such seating and that public entities may have opportunities to 
sell such seating to the general public. The Department proposed in 
the NPRM a provision aimed at striking a balance between affording 
individuals with disabilities adequate time to purchase accessible 
seating and the entity's desire to maximize ticket sales. In the 
NPRM, the Department proposed Sec.  35.138(f), which allowed for the 
release of accessible seating under the following circumstances: (i) 
When all seating in the facility has been sold, excluding luxury 
boxes, club boxes, or suites; (ii) when all seating in a designated 
area has been sold and the accessible seating being released is in 
the same area; or (iii) when all seating in a designated price range 
has been sold and the accessible seating being released is within 
the same price range.
    The Department's NPRM asked ``whether additional regulatory 
guidance is required or appropriate in terms of a more detailed or 
set schedule for the release of tickets in conjunction with the 
three approaches described above. For example, does the proposed 
regulation address the variable needs of assembly areas covered by 
the ADA? Is additional regulatory guidance required to eliminate 
discriminatory policies, practices and procedures related to the 
sale, hold, and release of accessible seating? What considerations 
should appropriately inform the determination of when unsold 
accessible seating can be released to the general public?'' 73 FR 
34466, 34484 (June 17, 2008).
    The Department received comments both supporting and opposing 
the inclusion of a hold-and-release provision. One side proposed 
loosening the restrictions on the release of unsold accessible 
seating. One commenter from a trade association suggested that 
tickets should be released regardless of whether there is a sell-
out, and that these tickets should be released according to a set 
schedule. Conversely, numerous individuals, advocacy groups, and at 
least one public entity urged the Department to tighten the 
conditions under which unsold tickets for accessible seating may be 
released. These commenters suggested that venues should not be 
permitted to release tickets during the first two weeks of sale, or 
alternatively, that they should not be permitted to be released 
earlier than 48 hours before a sold-out event. Many of these 
commenters criticized the release of accessible seating under the 
second and third prongs of Sec.  35.138(f) in the NPRM (when there 
is a sell-out in general seating in a designated seating area or in 
a price range), arguing that it would create situations where 
general seating would be available for purchase while accessible 
seating would not be.
    Numerous commenters--both from the industry and from advocacy 
groups--asked for clarification of the term ``sell-out.''

[[Page 56204]]

Business groups commented that industry practice is to declare a 
sell-out when there are only ``scattered singles'' available--
isolated seats that cannot be purchased as a set of adjacent pairs. 
Many of those same commenters also requested that ``sell-out'' be 
qualified with the phrase ``of all seating available for sale'' 
since it is industry practice to hold back from release tickets to 
be used for groups connected with that event (e.g., the promoter, 
home team, or sports league). They argued that those tickets are not 
available for sale and any return of these tickets to the general 
inventory happens close to the event date. Noting the practice of 
holding back tickets, one advocacy group suggested that covered 
entities be required to hold back accessible seating in proportion 
to the number of tickets that are held back for later release.
    The Department has concluded that it would be inappropriate to 
interfere with industry practice by defining what constitutes a 
``sell-out'' and that a public entity should continue to use its own 
approach to defining a ``sell-out.'' If, however, a public entity 
declares a sell-out by reference to those seats that are available 
for sale, but it holds back tickets that it reasonably anticipates 
will be released later, it must hold back a proportional percentage 
of accessible seating to be released as well.
    Adopting any of the alternatives proposed in the comments 
summarized above would have upset the balance between protecting the 
rights of individuals with disabilities and meeting venues' concerns 
about lost revenue from unsold accessible seating. As a result, the 
Department has retained Sec.  35.138(f) (renumbered as Sec.  
35.138(e)) in the final rule.
    The Department has, however, modified the regulation text to 
specify that accessible seating may be released only when ``all non-
accessible tickets in a designated seating area have been sold and 
the tickets for accessible seating are being released in the same 
designated area.'' As stated in the NPRM, the Department intended 
for this provision to allow, for example, the release of accessible 
seating at the orchestra level when all other seating at the 
orchestra level is sold. The Department has added this language to 
the final rule at Sec.  35.138(e)(1)(ii) to clarify that venues 
cannot designate or redesignate seating areas for the purpose of 
maximizing the release of unsold accessible seating. So, for 
example, a venue may not determine on an ad hoc basis that a group 
of seats at the orchestra level is a designated seating area in 
order to release unsold accessible seating in that area.
    The Department also has maintained the hold-and-release 
provisions that appeared in the NPRM but has added a provision to 
address the release of accessible seating for series-of-events 
tickets on a series-of-events basis. Many commenters asked the 
Department whether unsold accessible seating may be converted to 
general seating and released to the general public on a season-
ticket basis or longer when tickets typically are sold as a season-
ticket package or other long-term basis. Several disability rights 
organizations and individual commenters argued that such a practice 
should not be permitted, and, if it were, that conditions should be 
imposed to ensure that individuals with disabilities have future 
access to those seats.
    The Department interprets the fundamental principle of the ADA 
as a requirement to give individuals with disabilities equal, not 
better, access to those opportunities available to the general 
public. Thus, for example, a public entity that sells out its 
facility on a season-ticket only basis is not required to leave 
unsold its accessible seating if no persons with disabilities 
purchase those season-ticket seats. Of course, public entities may 
choose to go beyond what is required by reserving accessible seating 
for individuals with disabilities (or releasing such seats for sale 
to the general public) on an individual-game basis.
    If a covered entity chooses to release unsold accessible seating 
for sale on a season-ticket or other long-term basis, it must meet 
at least two conditions. Under Sec.  35.138(g) of the final rule, 
public entities must leave flexibility for game-day change-outs to 
accommodate ticket transfers on the secondary market. And public 
entities must modify their ticketing policies so that, in future 
years, individuals with disabilities will have the ability to 
purchase accessible seating on the same basis as other patrons 
(e.g., as season tickets). Put differently, releasing accessible 
seating to the general public on a season-ticket or other long-term 
basis cannot result in that seating being lost to individuals with 
disabilities in perpetuity. If, in future years, season tickets 
become available and persons with disabilities have reached the top 
of the waiting list or have met any other eligibility criteria for 
season-ticket purchases, public entities must ensure that accessible 
seating will be made available to the eligible individuals. In order 
to accomplish this, the Department has added Sec.  35.138(e)(3)(i) 
to require public entities that release accessible season tickets to 
individuals who do not have disabilities that require the features 
of accessible seating to establish a process to prevent the 
automatic reassignment of such ticket holders to accessible seating. 
For example, a public entity could have in place a system whereby 
accessible seating that was released because it was not purchased by 
individuals with disabilities is not in the pool of tickets 
available for purchase for the following season unless and until the 
conditions for ticket release have been satisfied in the following 
season. Alternatively, a public entity might release tickets for 
accessible seating only when a purchaser who does not need its 
features agrees that he or she has no guarantee of or right to the 
same seats in the following season, or that if season tickets are 
guaranteed for the following season, the purchaser agrees that the 
offer to purchase tickets is limited to non-accessible seats having 
to the extent practicable, comparable price, view, and amenities to 
the accessible seats such individuals held in the prior year. The 
Department is aware that this rule may require some administrative 
changes but believes that this process will not create undue 
financial and administrative burdens. The Department believes that 
this approach is balanced and beneficial. It will allow public 
entities to sell all of their seats and will leave open the 
possibility, in future seasons or series of events, that persons who 
need accessible seating may have access to it.
    The Department also has added Sec.  35.138(e)(3)(ii) to address 
how season tickets or series-of-events tickets that have attached 
ownership rights should be handled if the ownership right returns to 
the public entity (e.g., when holders forfeit their ownership right 
by failing to purchase season tickets or sell their ownership right 
back to a public entity). If the ownership right is for accessible 
seating, the public entity is required to adopt a process that 
allows an eligible individual with a disability who requires the 
features of such seating to purchase the rights and tickets for such 
seating.
    Nothing in the regulatory text prevents a public entity from 
establishing a process whereby such ticket holders agree to be 
voluntarily reassigned from accessible seating to another seating 
area so that individuals with mobility disabilities or disabilities 
that require the features of accessible seating and who become newly 
eligible to purchase season tickets have an opportunity to do so. 
For example, a public entity might seek volunteers to relocate to 
another location that is at least as good in terms of its location, 
price, and amenities, or a public entity might use a seat with 
forfeited ownership rights as an inducement to get a ticket holder 
to give up accessible seating he or she does not need.
    Ticket transfer. The Department received many comments asking 
whether accessible seating has the same transfer rights as general 
seats. The proposed regulation at Sec.  35.138(e) required that 
individuals with disabilities must be allowed to purchase season 
tickets for accessible seating on the same terms and conditions as 
individuals purchasing season tickets for general seating, including 
the right--if it exists for other ticket-holders--to transfer 
individual tickets to friends or associates. Some commenters pointed 
out that the NPRM proposed explicitly allowing individuals with 
disabilities holding season tickets to transfer tickets but did not 
address the transfer of tickets purchased for individual events. 
Several commenters representing assembly areas argued that persons 
with disabilities holding tickets for an individual event should not 
be allowed to sell or transfer them to third parties because such 
ticket transfers would increase the risk of fraud or would make 
unclear the obligation of the entity to accommodate secondary ticket 
transfers. They argued that individuals holding accessible seating 
should either be required to transfer their tickets to another 
individual with a disability or return them to the facility for a 
refund.
    Although the Department is sympathetic to concerns about 
administrative burden, curtailing transfer rights for accessible 
seating when other ticket holders are permitted to transfer tickets 
would be inconsistent with the ADA's guiding principle that 
individuals with disabilities must have rights equal to others. 
Thus, the Department has added language in the final rule in Sec.  
35.138(f) that requires that individuals with disabilities holding 
accessible seating for any event have the

[[Page 56205]]

same transfer rights accorded other ticket holders for that event. 
Section 35.138(f) also preserves the rights of individuals with 
disabilities who hold tickets to accessible seats for a series of 
events to transfer individual tickets to others, regardless of 
whether the transferee needs accessible seating. This approach 
recognizes the common practice of individuals splitting season 
tickets or other multi-event ticket packages with friends, 
colleagues, or other spectators to make the purchase of season 
tickets affordable; individuals with disabilities should not be 
placed in the burdensome position of having to find another 
individual with a disability with whom to share the package.
    This provision, however, does not require public entities to 
seat an individual who holds a ticket to an accessible seat in such 
seating if the individual does not need the accessible features of 
the seat. A public entity may reserve the right to switch these 
individuals to different seats if they are available, but a public 
entity is not required to remove a person without a disability who 
is using accessible seating from that seating, even if a person who 
uses a wheelchair shows up with a ticket from the secondary market 
for a non-accessible seat and wants accessible seating.
    Secondary ticket market. Section 35.138(g) is a new provision in 
the final rule that requires a public entity to modify its policies, 
practices, or procedures to ensure that an individual with a 
disability, who acquires a ticket in the secondary ticket market, 
may use that ticket under the same terms and conditions as other 
ticket holders who acquire a ticket in the secondary market for an 
event or series of events. This principle was discussed in the NPRM 
in connection with Sec.  35.138(e), pertaining to season-ticket 
sales. There, the Department asked for public comment regarding a 
public entity's proposed obligation to accommodate the transfer of 
accessible seating tickets on the secondary ticket market to those 
who do not need accessible seating and vice versa.
    The secondary ticket market, for the purposes of this rule, 
broadly means any transfer of tickets after the public entity's 
initial sale of tickets to individuals or entities. It thus 
encompasses a wide variety of transactions, from ticket transfers 
between friends to transfers using commercial exchange systems. Many 
commenters noted that the distinction between the primary and 
secondary ticket market has become blurred as a result of agreements 
between teams, leagues, and secondary market sellers. These 
commenters noted that the secondary market may operate independently 
of the public entity, and parts of the secondary market, such as 
ticket transfers between friends, undoubtedly are outside the direct 
jurisdiction of the public entity.
    To the extent that venues seat persons who have purchased 
tickets on the secondary market, they must similarly seat persons 
with disabilities who have purchased tickets on the secondary 
market. In addition, some public entities may acquire ADA 
obligations directly by formally entering the secondary ticket 
market.
    The Department's enforcement experience with assembly areas also 
has revealed that venues regularly provide for and make last-minute 
seat transfers. As long as there are vacant wheelchair spaces, 
requiring venues to provide wheelchair spaces for patrons who 
acquired inaccessible seats and need wheelchair spaces is an example 
of a reasonable modification of a policy under title II of the ADA. 
Similarly, a person who has a ticket for a wheelchair space but who 
does not require its accessible features could be offered non-
accessible seating if such seating is available.
    The Department's longstanding position that title II of the ADA 
requires venues to make reasonable modifications in their policies 
to allow individuals with disabilities who acquired non-accessible 
tickets on the secondary ticket market to be seated in accessible 
seating, where such seating is vacant, is supported by the only 
Federal court to address this issue. See Independent Living 
Resources v. Oregon Arena Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 
1998). The Department has incorporated this position into the final 
rule at Sec.  35.138(g)(2).
    The NPRM contained two questions aimed at gauging concern with 
the Department's consideration of secondary ticket market sales. The 
first question asked whether a secondary purchaser who does not have 
a disability and who buys an accessible seat should be required to 
move if the space is needed for someone with a disability.
    Many disability rights advocates answered that the individual 
should move provided that there is a seat of comparable or better 
quality available for him and his companion. Some venues, however, 
expressed concerns about this provision, and asked how they are to 
identify who should be moved and what obligations apply if there are 
no seats available that are equivalent or better in quality.
    The Department's second question asked whether there are 
particular concerns about the obligation to provide accessible 
seating, including a wheelchair space, to an individual with a 
disability who purchases an inaccessible seat through the secondary 
market.
    Industry commenters contended that this requirement would create 
a ``logistical nightmare,'' with venues scrambling to reseat patrons 
in the short time between the opening of the venues' doors and the 
commencement of the event. Furthermore, they argued that they might 
not be able to reseat all individuals and that even if they were 
able to do so, patrons might be moved to inferior seats (whether in 
accessible or non-accessible seating). These commenters also were 
concerned that they would be sued by patrons moved under such 
circumstances.
    These commenters seem to have misconstrued the rule. Covered 
entities are not required to seat every person who acquires a ticket 
for inaccessible seating but needs accessible seating, and are not 
required to move any individual who acquires a ticket for accessible 
seating but does not need it. Covered entities that allow patrons to 
buy and sell tickets on the secondary market must make reasonable 
modifications to their policies to allow persons with disabilities 
to participate in secondary ticket transfers. The Department 
believes that there is no one-size-fits-all rule that will suit all 
assembly areas. In those circumstances where a venue has accessible 
seating vacant at the time an individual with a disability who needs 
accessible seating presents his ticket for inaccessible seating at 
the box office, the venue must allow the individual to exchange his 
ticket for an accessible seat in a comparable location if such an 
accessible seat is vacant. Where, however, a venue has sold all of 
its accessible seating, the venue has no obligation to provide 
accessible seating to the person with a disability who purchased an 
inaccessible seat on the secondary market. Venues may encourage 
individuals with disabilities who hold tickets for inaccessible 
seating to contact the box office before the event to notify them of 
their need for accessible seating, even though they may not require 
ticketholders to provide such notice.
    The Department notes that public entities are permitted, though 
not required, to adopt policies regarding moving patrons who do not 
need the features of an accessible seat. If a public entity chooses 
to do so, it might mitigate administrative concerns by marking 
tickets for accessible seating as such, and printing on the ticket 
that individuals who purchase such seats but who do not need 
accessible seating are subject to being moved to other seats in the 
facility if the accessible seating is required for an individual 
with a disability. Such a venue might also develop and publish a 
ticketing policy to provide transparency to the general public and 
to put holders of tickets for accessible seating who do not require 
it on notice that they may be moved.
    Prevention of fraud in purchase of accessible seating. Assembly 
area managers and advocacy groups have informed the Department that 
the fraudulent purchase of accessible seating is a pressing concern. 
Curbing fraud is a goal that public entities and individuals with 
disabilities share. Steps taken to prevent fraud, however, must be 
balanced carefully against the privacy rights of individuals with 
disabilities. Such measures also must not impose burdensome 
requirements upon, nor restrict the rights of, individuals with 
disabilities.
    In the NPRM, the Department struck a balance between these 
competing concerns by proposing Sec.  35.138(h), which prohibited 
public entities from asking for proof of disability before the 
purchase of accessible seating but provided guidance in two 
paragraphs on appropriate measures for curbing fraud. Paragraph (1) 
proposed allowing a public entity to ask individuals purchasing 
single-event tickets for accessible seating whether they are 
wheelchair users. Paragraph (2) proposed allowing a public entity to 
require the individuals purchasing accessible seating for season 
tickets or other multi-event ticket packages to attest in writing 
that the accessible seating is for a wheelchair user. Additionally, 
the NPRM proposed to permit venues, when they have good cause to 
believe that an individual has fraudulently purchased accessible 
seating, to investigate that individual.
    Several commenters objected to this rule on the ground that it 
would require a wheelchair user to be the purchaser of

[[Page 56206]]

tickets. The Department has reworded this paragraph to reflect that 
the individual with a disability does not have to be the ticket 
purchaser. The final rule allows third parties to purchase 
accessible tickets at the request of an individual with a 
disability.
    Commenters also argued that other individuals with disabilities 
who do not use wheelchairs should be permitted to purchase 
accessible seating. Some individuals with disabilities who do not 
use wheelchairs urged the Department to change the rule, asserting 
that they, too, need accessible seating. The Department agrees that 
such seating, although designed for use by a wheelchair user, may be 
used by non-wheelchair users, if those persons are persons with a 
disability who need to use accessible seating because of a mobility 
disability or because their disability requires the use of the 
features that accessible seating provides (e.g., individuals who 
cannot bend their legs because of braces, or individuals who, 
because of their disability, cannot sit in a straight-back chair).
    Some commenters raised concerns that allowing venues to ask 
questions to determine whether individuals purchasing accessible 
seating are doing so legitimately would burden individuals with 
disabilities in the purchase of accessible seating. The Department 
has retained the substance of this provision in Sec.  35.138(h) of 
the final rule, but emphasizes that such questions should be asked 
at the initial time of purchase. For example, if the method of 
purchase is via the Internet, then the question(s) should be 
answered by clicking a yes or no box during the transaction. The 
public entity may warn purchasers that accessible seating is for 
individuals with disabilities and that individuals purchasing such 
tickets fraudulently are subject to relocation.
    One commenter argued that face-to-face contact between the venue 
and the ticket holder should be required in order to prevent fraud 
and suggested that individuals who purchase accessible seating 
should be required to pick up their tickets at the box office and 
then enter the venue immediately. The Department has declined to 
adopt that suggestion. It would be discriminatory to require 
individuals with disabilities to pick up tickets at the box office 
when other spectators are not required to do so. If the assembly 
area wishes to make face-to-face contact with accessible seating 
ticket holders to curb fraud, it may do so through its ushers and 
other customer service personnel located within the seating area.
    Some commenters asked whether it is permissible for assembly 
areas to have voluntary clubs where individuals with disabilities 
self-identify to the public entity in order to become a member of a 
club that entitles them to purchase accessible seating reserved for 
club members or otherwise receive priority in purchasing accessible 
seating. The Department agrees that such clubs are permissible, 
provided that a reasonable amount of accessible seating remains 
available at all prices and dispersed at all locations for 
individuals with disabilities who are non-members.

Sec.  35.139 Direct threat

    In Appendix A of the Department's 1991 title II regulation, the 
Department included a detailed discussion of ``direct threat'' that, 
among other things, explained that ``the principles established in 
Sec.  36.208 of the Department's [title III] regulation'' were 
``applicable'' as well to title II, insofar as ``questions of safety 
are involved.'' 28 CFR part 35, app. A at 565 (2009). In the final 
rule, the Department has included specific requirements related to 
``direct threat'' that parallel those in the title III rule. These 
requirements are found in new Sec.  35.139.

Subpart D--Program Accessibility

Section 35.150(b)(2) Safe harbor

    The ``program accessibility'' requirement in regulations 
implementing title II of the Americans with Disabilities Act 
requires that each service, program, or activity, when viewed in its 
entirety, be readily accessible to and usable by individuals with 
disabilities. 28 CFR 35.150(a). Because title II evaluates a public 
entity's programs, services, and activities in their entirety, 
public entities have flexibility in addressing accessibility issues. 
Program access does not necessarily require a public entity to make 
each of its existing facilities accessible to and usable by 
individuals with disabilities, and public entities are not required 
to make structural changes to existing facilities where other 
methods are effective in achieving program access. See id. \3\ 
Public entities do, however, have program access considerations that 
are independent of, but may coexist with, requirements imposed by 
new construction or alteration requirements in those same 
facilities.
---------------------------------------------------------------------------

    \3\ The term ``existing facility'' is defined in Sec.  35.104 as 
amended by this rule.
---------------------------------------------------------------------------

    Where a public entity opts to alter existing facilities to 
comply with its program access requirements, the entity must meet 
the accessibility requirements for alterations set out in Sec.  
35.151. Under the final rule, these alterations will be subject to 
the 2010 Standards. The 2010 Standards introduce technical and 
scoping specifications for many elements not covered by the 1991 
Standards. In existing facilities, these supplemental requirements 
need to be taken into account by a public entity in ensuring program 
access. Also included in the 2010 Standards are revised technical 
and scoping requirements for a number of elements that were 
addressed in the 1991 Standards. These revised requirements reflect 
incremental changes that were added either because of additional 
study by the Access Board or in order to harmonize requirements with 
the model codes.
    Although the program accessibility standard offers public 
entities a level of discretion in determining how to achieve program 
access, in the NPRM, the Department proposed an addition to Sec.  
35.150 at Sec.  35.150(b)(2), denominated ``Safe Harbor,'' to 
clarify that ``[i]f a public entity has constructed or altered 
elements * * * in accordance with the specifications in either the 
1991 Standards or the Uniform Federal Accessibility Standard, such 
public entity is not, solely because of the Department's adoption of 
the [2010] Standards, required to retrofit such elements to reflect 
incremental changes in the proposed standards.'' 73 FR 34466, 34505 
(June 17, 2008). In these circumstances, the public entity would be 
entitled to a safe harbor for the already compliant elements until 
those elements are altered. The safe harbor does not negate a public 
entity's new construction or alteration obligations. A public entity 
must comply with the new construction or alteration requirements in 
effect at the time of the construction or alteration. With respect 
to existing facilities designed and constructed after January 26, 
1992, but before the public entities are required to comply with the 
2010 Standards, the rule is that any elements in these facilities 
that were not constructed in conformance with UFAS or the 1991 
Standards are in violation of the ADA and must be brought into 
compliance. If elements in existing facilities were altered after 
January 26, 1992, and those alterations were not made in conformance 
with the alteration requirements in effect at the time, then those 
alteration violations must be corrected. Section 35.150(b)(2) of the 
final rule specifies that until the compliance date for the 
Standards (18 months from the date of publication of the rule), 
facilities or elements covered by Sec.  35.151(a) or (b) that are 
noncompliant with either the 1991 Standards or UFAS shall be made 
accessible in accordance with the 1991 Standards, UFAS, or the 2010 
Standards. Once the compliance date is reached, such noncompliant 
facilities or elements must be made accessible in accordance with 
the 2010 Standards.
    The Department received many comments on the safe harbor during 
the 60-day public comment period. Advocacy groups were opposed to 
the safe harbor for compliant elements in existing facilities. These 
commenters objected to the Department's characterization of 
revisions between the 1991 and 2010 Standards as incremental changes 
and assert that these revisions represent important advances in 
accessibility for individuals with disabilities. Commenters saw no 
basis for ``grandfathering'' outdated accessibility standards given 
the flexibility inherent in the program access standard. Others 
noted that title II's ``undue financial and administrative burdens'' 
and ``fundamental alteration'' defenses eliminate any need for 
further exemptions from compliance. Some commenters suggested that 
entities' past efforts to comply with the program access standard of 
28 CFR 35.150(a) might appropriately be a factor in determining what 
is required in the future.
    Many public entities welcomed the Department's proposed safe 
harbor. These commenters contend that the safe harbor allows public 
entities needed time to evaluate program access in light of the 2010 
Standards, and incorporate structural changes in a careful and 
thoughtful way toward increasing accessibility entity-wide. Many 
felt that it would be an ineffective use of public funds to update 
buildings to retrofit elements that had already been constructed or 
modified to Department-issued and sanctioned specifications. One 
entity pointed to the ``possibly budget-breaking'' nature of

[[Page 56207]]

forcing compliance with incremental changes.
    The Department has reviewed and considered all information 
received during the 60-day public comment period. Upon review, the 
Department has decided to retain the title II safe harbor with minor 
revisions. The Department believes that the safe harbor provides an 
important measure of clarity and certainty for public entities as to 
the effect of the final rule with respect to existing facilities. 
Additionally, by providing a safe harbor for elements already in 
compliance with the technical and scoping specifications in the 1991 
Standards or UFAS, funding that would otherwise be spent on 
incremental changes and repeated retrofitting is freed up to be used 
toward increased entity-wide program access. Public entities may 
thereby make more efficient use of the resources available to them 
to ensure equal access to their services, programs, or activities 
for all individuals with disabilities.
    The safe harbor adopted with this final rule is a narrow one, as 
the Department recognizes that this approach may delay, in some 
cases, the increased accessibility that the revised requirements 
would provide, and that for some individuals with disabilities the 
impact may be significant. This safe harbor operates only with 
respect to elements that are in compliance with the scoping and 
technical specifications in either the 1991 Standards or UFAS; it 
does not apply to supplemental requirements, those elements for 
which scoping and technical specifications are first provided in the 
2010 Standards.

Existing Facilities

    Existing play areas. The 1991 Standards do not include specific 
requirements for the design and construction of play areas. To meet 
program accessibility requirements where structural changes are 
necessary, public entities have been required to apply the general 
new construction and alteration standards to the greatest extent 
possible, including with respect to accessible parking, routes to 
the playground, playground equipment, and playground amenities 
(e.g., picnic tables and restrooms). The Access Board published 
final guidelines for play areas in October 2000. The guidelines 
extended beyond general playground access to establish specific 
scoping and technical requirements for ground-level and elevated 
play components, accessible routes connecting the components, 
accessible ground surfaces, and maintenance of those surfaces. These 
guidelines filled a void left by the 1991 Standards. They have been 
referenced in Federal playground construction and safety guidelines 
and have been used voluntarily when many play areas across the 
country have been altered or constructed.
    In adopting the 2004 ADAAG (which includes the 2000 play area 
guidelines), the Department acknowledges both the importance of 
integrated, full access to play areas for children and parents with 
disabilities, as well as the need to avoid placing an untenable 
fiscal burden on public entities. In the NPRM, the Department stated 
it was proposing two specific provisions to reduce the impact on 
existing facilities that undertake structural modifications pursuant 
to the program accessibility requirement. First, the Department 
proposed in Sec.  35.150(b)(4) that existing play areas that are not 
being altered would be permitted to meet a reduced scoping 
requirement with respect to their elevated play components. Elevated 
play components, which are found on most playgrounds, are the 
individual components that are linked together to form large-scale 
composite playground equipment (e.g., the monkey bars attached to 
the suspension bridge attached to the tube slide, etc.) The 2010 
Standards provide that a play area that includes both ground level 
and elevated play components must ensure that a specified number of 
the ground-level play components and at least 50 percent of the 
elevated play components are accessible.
    In the NPRM, the Department asked for specific public comment 
with regard to whether existing play areas should be permitted to 
substitute additional ground-level play components for the elevated 
play components they would otherwise have been required to make 
accessible. The Department also queried if there were other 
requirements applicable to play areas in the 2004 ADAAG for which 
the Department should consider exemptions or reduced scoping. Many 
commenters opposed permitting existing play areas to make such 
substitutions. Several commenters stated that the Access Board 
already completed significant negotiation and cost balancing in its 
rulemaking, so no additional exemptions should be added in either 
meeting program access requirements or in alterations. Others noted 
that elevated components are generally viewed as the more 
challenging and exciting by children, so making more ground than 
elevated play components accessible would result in discrimination 
against children with disabilities in general and older children 
with disabilities in particular. They argued that the ground 
components would be seen as equipment for younger children and 
children with disabilities, while elevated components would serve 
only older children without disabilities. In addition, commenters 
advised that including additional ground-level play components would 
require more accessible route and use zone surfacing, which would 
result in a higher cost burden than making elevated components 
accessible.
    The Department also asked for public comment on whether it would 
be appropriate for the Access Board to consider issuing guidelines 
for alterations to play and recreational facilities that would 
permit reduced scoping of accessible components or substitution of 
ground-level play components in lieu of elevated play components. 
Most commenters opposed any additional reductions in scoping and 
substitutions. These commenters uniformly stated that the Access 
Board completed sufficient negotiation during its rulemaking on its 
play area guidelines published in 2000 and that those guidelines 
consequently should stand as is. One commenter advocated reduced 
scoping and substitution of ground play components during 
alterations only for those play areas built prior to the 
finalization of the guidelines.
    The Department has considered the comments it has received and 
has determined that it is not necessary to provide a specific 
exemption to the scoping for components for existing play areas or 
to recommend reduced scoping or additional exemptions for 
alteration, and has deleted the reduced scoping proposed in NPRM 
Sec.  35.150(b)(4)(i) from the final rule. The Department believes 
that it is preferable for public entities to try to achieve 
compliance with the design standards established in the 2010 
Standards. If this is not possible to achieve in an existing 
setting, the requirements for program accessibility provide enough 
flexibility to permit the covered entity to pursue alternative 
approaches to provide accessibility.
    Second, in Sec.  35.150(b)(5)(i) of the NPRM, the Department 
proposed language stating that existing play areas that are less 
than 1,000 square feet in size and are not otherwise being altered, 
need not comply with the scoping and technical requirements for play 
areas in section 240 of the 2004 ADAAG. The Department stated it 
selected this size based on the provision in section 1008.2.4.1 of 
the 2004 ADAAG, Exception 1, which permits play areas less than 
1,000 square feet in size to provide accessible routes with a 
reduced clear width (44 inches instead of 60 inches). In its 2000 
regulatory assessment for the play area guidelines, the Access Board 
assumed that such ``small'' play areas represented only about 20 
percent of the play areas located in public schools, and none of the 
play areas located in city and State parks (which the Board assumed 
were typically larger than 1,000 square feet).
    In the NPRM, the Department asked if existing play areas less 
than 1,000 square feet should be exempt from the requirements 
applicable to play areas. The vast majority of commenters objected 
to such an exemption. One commenter stated that many localities that 
have parks this size are already making them accessible; many cited 
concerns that this would leave all or most public playgrounds in 
small towns inaccessible; and two commenters stated that, since many 
of New York City's parks are smaller than 1,000 square feet, only 
scattered larger parks in the various boroughs would be obliged to 
become accessible. Residents with disabilities would then have to 
travel substantial distances outside their own neighborhoods to find 
accessible playgrounds. Some commenters responded that this 
exemption should not apply in instances where the play area is the 
only one in the program, while others said that if a play area is 
exempt for reasons of size, but is the only one in the area, then it 
should have at least an accessible route and 50 percent of its 
ground-level play components accessible. One commenter supported the 
exemption as presented in the question.
    The Department is persuaded by these comments that it is 
inappropriate to exempt public play areas that are less than 1,000 
square feet in size. The Department believes that the factors used 
to determine program accessibility, including the limits established 
by the undue financial and administrative burdens defense, provide 
sufficient flexibility to public entities in determining how to make 
their existing play areas accessible. In those cases where a title 
II entity believes

[[Page 56208]]

that present economic concerns make it an undue financial and 
administrative burden to immediately make its existing playgrounds 
accessible in order to comply with program accessibility 
requirements, then it may be reasonable for the entity to develop a 
multi-year plan to bring its facilities into compliance.
    In addition to requesting public comment about the specific 
sections in the NPRM, the Department also asked for public comment 
about the appropriateness of a general safe harbor for existing play 
areas and a safe harbor for public entities that have complied with 
State or local standards specific to play areas. In the almost 200 
comments received on title II play areas, the vast majority of 
commenters strongly opposed all safe harbors, exemptions, and 
reductions in scoping. By contrast, one commenter advocated a safe 
harbor from compliance with the 2004 ADAAG play area requirements 
along with reduced scoping and exemptions for both program 
accessibility and alterations; a second commenter advocated only the 
general safe harbor from compliance with the supplemental 
requirements.
    In response to the question of whether the Department should 
exempt public entities from specific compliance with the 
supplemental requirements for play areas, commenters stated that 
since no specific standards previously existed, play areas are more 
than a decade behind in providing full access for individuals with 
disabilities. When accessible play areas were created, public 
entities, acting in good faith, built them according to the 2004 
ADAAG requirements; many equipment manufacturers also developed 
equipment to meet those guidelines. If existing playgrounds were 
exempted from compliance with the supplemental guidelines, 
commenters said, those entities would be held to a lesser standard 
and left with confusion, a sense of wasted resources, and federally 
condoned discrimination and segregation. Commenters also cited 
Federal agency settlement agreements on play areas that required 
compliance with the guidelines. Finally, several commenters observed 
that the provision of a safe harbor in this instance was invalid for 
two reasons: (1) The rationale for other safe harbors--that entities 
took action to comply with the 1991 Standards and should not be 
further required to comply with new standards--does not exist; and 
(2) concerns about financial and administrative burdens are 
adequately addressed by program access requirements.
    The question of whether accessibility of play areas should 
continue to be assessed on the basis of case-by-case evaluations 
elicited conflicting responses. One commenter asserted that there is 
no evidence that the case-by-case approach is not working and so it 
should continue until found to be inconsistent with the ADA's goals. 
Another commenter argued that case-by-case evaluations result in 
unpredictable outcomes which result in costly and long court 
actions. A third commenter, advocating against case-by-case 
evaluations, requested instead increased direction and scoping to 
define what constitutes an accessible play area program.
    The Department has considered all of the comments it received in 
response to its questions and has concluded that there is 
insufficient basis to establish a safe harbor from compliance with 
the supplemental guidelines. Thus, the Department has eliminated the 
proposed exemption contained in Sec.  35.150(b)(5)(i) of the NPRM 
for existing play areas that are less than 1,000 square feet. The 
Department believes that the factors used to determine program 
accessibility, including the limits established by the undue 
financial and administrative burdens defense, provide sufficient 
flexibility to public entities in determining how to make their 
existing play areas accessible.
    In the NPRM, the Department also asked whether there are State 
and local standards addressing play and recreation area 
accessibility and, to the extent that there are such standards, 
whether facilities currently governed by, and in compliance with, 
such State and local standards or codes should be subject to a safe 
harbor from compliance with applicable requirements in the 2004 
ADAAG. The Department also asked whether it would be appropriate for 
the Access Board to consider the implementation of guidelines that 
would permit such a safe harbor with respect to play and recreation 
areas undertaking alterations. In response, commenters stated that 
few State or local governments have standards that address issues of 
accessibility in play areas, and one commenter organization said 
that it was unaware of any State or local standards written 
specifically for accessible play areas. One commenter observed from 
experience that most State and local governments were waiting for 
the Access Board guidelines to become enforceable standards as they 
had no standards themselves to follow. Another commenter offered 
that public entities across the United States already include in 
their playground construction bid specifications language that 
requires compliance with the Access Board's guidelines. A number of 
commenters advocated for the Access Board's guidelines to become 
comprehensive Federal standards that would complement any 
abbreviated State and local standards. One commenter, however, 
supported a safe harbor for play areas undergoing alterations if the 
areas currently comply with State or local standards.
    The Department is persuaded by these comments that there is 
insufficient basis to establish a safe harbor for program access or 
alterations for play areas built in compliance with State or local 
laws.
    In the NPRM, the Department asked whether ``a reasonable number, 
but at least one'' is a workable standard to determine the 
appropriate number of existing play areas that a public entity must 
make accessible. Many commenters objected to this standard, 
expressing concern that the phrase ``at least one'' would be 
interpreted as a maximum rather than a minimum requirement. Such 
commenters feared that this language would allow local governments 
to claim compliance by making just one public park accessible, 
regardless of the locality's size, budget, or other factors, and 
would support segregation, forcing children with disabilities to 
leave their neighborhoods to enjoy an accessible play area. While 
some commenters criticized what they viewed as a new analysis of 
program accessibility, others asserted that the requirements of 
program accessibility should be changed to address issues related to 
play areas that are not the main program in a facility but are 
essential components of a larger program (e.g., drop-in child care 
for a courthouse).
    The Department believes that those commenters who opposed the 
Department's ``reasonable number, but at least one'' standard for 
program accessibility misunderstood the Department's proposal. The 
Department did not intend any change in its longstanding 
interpretation of the program accessibility requirement. Program 
accessibility requires that each service, program, or activity be 
operated ``so that the service, program, or activity, when viewed in 
its entirety, is readily accessible to and usable by individuals 
with disabilities,'' 28 CFR 35.150(a), subject to the undue 
financial and administrative burdens and fundamental alterations 
defenses provided in 28 CFR 35.150. In determining how many 
facilities of a multi-site program must be made accessible in order 
to make the overall program accessible, the standard has always been 
an assessment of what is reasonable under the circumstances to make 
the program readily accessible to and usable by individuals with 
disabilities, taking into account such factors as the size of the 
public entity, the particular program features offered at each site, 
the geographical distance between sites, the travel times to the 
sites, the number of sites, and availability of public 
transportation to the sites. In choosing among available methods for 
meeting this requirement, public entities are required to give 
priority ``to those methods that offer services, programs, and 
activities * * * in the most integrated setting appropriate.'' 28 
CFR 35.150(b)(1). As a result, in cases where the sites are widely 
dispersed with difficult travel access and where the program 
features offered vary widely between sites, program accessibility 
will require a larger number of facilities to be accessible in order 
to ensure program accessibility than where multiple sites are 
located in a concentrated area with easy travel access and 
uniformity in program offerings.
    Commenters responded positively to the Department's question in 
the NPRM whether the final rule should provide a list of factors 
that a public entity should use to determine how many of its 
existing play areas should be made accessible. Commenters also 
asserted strongly that the number of existing parks in the locality 
should not be the main factor. In addition to the Department's 
initial list--including number of play areas in an area, travel 
times or geographic distances between play areas, and the size of 
the public entity--commenters recommended such factors as 
availability of accessible pedestrian routes to the playgrounds, 
ready availability of accessible transportation, comparable 
amenities and services in and surrounding the play areas, size of 
the playgrounds, and sufficient variety in accessible play 
components within the playgrounds. The Department agrees that these 
factors should be considered, where appropriate, in any

[[Page 56209]]

determination of whether program accessibility has been achieved. 
However, the Department has decided that it need not address these 
factors in the final rule itself because the range of factors that 
might need to be considered would vary depending upon the 
circumstances of particular public entities. The Department does not 
believe any list would be sufficiently comprehensive to cover every 
situation.
    The Department also requested public comment about whether there 
was a ``tipping point'' at which the costs of compliance with the 
new requirements for existing play areas would be so burdensome that 
the entity would simply shut down the playground. Commenters 
generally questioned the feasibility of determining a ``tipping 
point.'' No commenters offered a recommended ``tipping point.'' 
Moreover, most commenters stated that a ``tipping point'' is not a 
valid consideration for various reasons, including that ``tipping 
points'' will vary based upon each entity's budget and other 
mandates, and costs that are too high will be addressed by the 
limitations of the undue financial and administrative burdens 
defense in the program accessibility requirement and that a 
``tipping point'' must be weighed against quality of life issues, 
which are difficult to quantify. The Department has decided that 
comments did not establish any clear ``tipping point'' and therefore 
provides no regulatory requirement in this area.
    Swimming pools. The 1991 Standards do not contain specific 
scoping or technical requirements for swimming pools. As a result, 
under the 1991 title II regulation, title II entities that operate 
programs or activities that include swimming pools have not been 
required to provide an accessible route into those pools via a ramp 
or pool lift, although they are required to provide an accessible 
route to such pools. In addition, these entities continue to be 
subject to the general title II obligation to make their programs 
usable and accessible to persons with disabilities.
    The 2004 ADAAG includes specific technical and scoping 
requirements for new and altered swimming pools at sections 242 and 
1009. In the NPRM, the Department sought to address the impact of 
these requirements on existing swimming pools. Section 242.2 of the 
2004 ADAAG states that swimming pools must provide two accessible 
means of entry, except that swimming pools with less than 300 linear 
feet of swimming pool wall are only required to provide one 
accessible means of entry, provided that the accessible means of 
entry is either a swimming pool lift complying with section 1009.2 
or a sloped entry complying with section 1009.3.
    In the NPRM, the Department proposed, in Sec.  35.150(b)(4)(ii), 
that for measures taken to comply with title II's program 
accessibility requirements, existing swimming pools with at least 
300 linear feet of swimming pool wall would be required to provide 
only one accessible means of access that complied with section 
1009.2 or section 1009.3 of the 2004 ADAAG.
    The Department specifically sought comment from public entities 
and individuals with disabilities on the question whether the 
Department should ``allow existing public entities to provide only 
one accessible means of access to swimming pools more than 300 
linear feet long?'' The Department received significant public 
comment on this proposal.
    Most commenters opposed any reduction in the scoping required in 
the 2004 ADAAG, citing the fact that swimming is a common 
therapeutic form of exercise for many individuals with disabilities. 
Many commenters also stated that the cost of a swimming pool lift, 
approximately $5,000, or other nonstructural options for pool access 
such as transfer steps, transfer walls, and transfer platforms, 
would not be an undue financial and administrative burden for most 
title II entities. Other commenters pointed out that the undue 
financial and administrative burdens defense already provided public 
entities with a means to reduce their scoping requirements. A few 
commenters cited safety concerns resulting from having just one 
accessible means of access, and stated that because pools typically 
have one ladder for every 75 linear feet of pool wall, they should 
have more than one accessible means of access. One commenter stated 
that construction costs for a public pool are approximately $4,000-
4,500 per linear foot, making the cost of a pool with 300 linear 
feet of swimming pool wall approximately $1.2 million, compared to 
$5,000 for a pool lift. Some commenters did not oppose the one 
accessible means of access for larger pools so long as a lift was 
used. A few commenters approved of the one accessible means of 
access for larger pools. The Department also considered the American 
National Standard for Public Swimming Pools, ANSI/NSPI-1 2003, 
section 23 of which states that all pools should have at least two 
means of egress.
    In the NPRM, the Department also proposed at Sec.  
35.150(b)(5)(ii) that existing swimming pools with less than 300 
linear feet of swimming pool wall be exempted from having to comply 
with the provisions of section 242.2. The Department's NPRM 
requested public comment about the potential effect of this 
approach, asking whether existing swimming pools with less than 300 
linear feet of pool wall should be exempt from the requirements 
applicable to swimming pools.
    Most commenters were opposed to this proposal. A number of 
commenters stated, based on the Access Board estimates that 90 
percent of public high school pools, 40 percent of public park and 
community center pools, and 30 percent of public college and 
university pools have less than 300 linear feet of pool wall, that a 
large number of public swimming pools would fall under this 
exemption. Other commenters pointed to the existing undue financial 
and administrative burdens defenses as providing public entities 
with sufficient protection from excessive compliance costs. Few 
commenters supported this exemption.
    The Department also considered the fact that many existing 
swimming pools owned or operated by public entities are recipients 
of Federal financial assistance and therefore, are also subject to 
the program accessibility requirements of section 504 of the 
Rehabilitation Act.
    The Department has carefully considered all the information 
available to it including the comments submitted on these two 
proposed exemptions for swimming pools owned or operated by title II 
entities. The Department acknowledges that swimming provides 
important therapeutic, exercise, and social benefits for many 
individuals with disabilities and is persuaded that exemption of 
many publicly owned or operated pools from the 2010 Standards is 
neither appropriate nor necessary. The Department agrees with the 
commenters that title II already contains sufficient limitations on 
public entities' obligations to make their programs accessible. In 
particular, the Department agrees that those public entities that 
can demonstrate that making particular existing swimming pools 
accessible in accordance with the 2010 Standards would be an undue 
financial and administrative burden are sufficiently protected from 
excessive compliance costs. Thus, the Department has eliminated 
proposed Sec. Sec.  35.150(b)(4)(ii) and (b)(5)(ii) from the final 
rule.
    In addition, although the NPRM contained no specific proposed 
regulatory language on this issue, the NPRM sought comment on what 
would be a workable standard for determining the appropriate number 
of existing swimming pools that a public entity must make accessible 
for its program to be accessible. The Department asked whether a 
``reasonable number, but at least one'' would be a workable standard 
and, if not, whether there was a more appropriate specific standard. 
The Department also asked if, in the alternative, the Department 
should provide ``a list of factors that a public entity could use to 
determine how many of its existing swimming pools to make 
accessible, e.g., number of swimming pools, travel times or 
geographic distances between swimming pools, and the size of the 
public entity? ''
    A number of commenters expressed concern over the ``reasonable 
number, but at least one'' standard and contended that, in reality, 
public entities would never provide more than one accessible 
existing pool, thus segregating individuals with disabilities. Other 
commenters felt that the existing program accessibility standard was 
sufficient. Still others suggested that one in every three existing 
pools should be made accessible. One commenter suggested that all 
public pools should be accessible. Some commenters proposed a list 
of factors to determine how many existing pools should be 
accessible. Those factors include the total number of pools, the 
location, size, and type of pools provided, transportation 
availability, and lessons and activities available. A number of 
commenters suggested that the standard should be based on geographic 
areas, since pools serve specific neighborhoods. One commenter 
argued that each pool should be examined individually to determine 
what can be done to improve its accessibility.
    The Department did not include any language in the final rule 
that specifies the ``reasonable number, but at least one'' standard 
for program access. However, the Department believes that its 
proposal was misunderstood by many commenters. Each

[[Page 56210]]

service, program, or activity conducted by a public entity, when 
viewed in its entirety, must still be readily accessible to and 
usable by individuals with disabilities unless doing so would result 
in a fundamental alteration in the nature of the program or activity 
or in undue financial and administrative burdens. Determining which 
pool(s) to make accessible and whether more than one accessible pool 
is necessary to provide program access requires analysis of a number 
of factors, including, but not limited to, the size of the public 
entity, geographical distance between pool sites, whether more than 
one community is served by particular pools, travel times to the 
pools, the total number of pools, the availability of lessons and 
other programs and amenities at each pool, and the availability of 
public transportation to the pools. In many instances, making one 
existing swimming pool accessible will not be sufficient to ensure 
program accessibility. There may, however, be some circumstances 
where a small public entity can demonstrate that modifying one pool 
is sufficient to provide access to the public entity's program of 
providing public swimming pools. In all cases, a public entity must 
still demonstrate that its programs, including the program of 
providing public swimming pools, when viewed in their entirety, are 
accessible.
    Wading pools. The 1991 Standards do not address wading pools. 
Section 242.3 of the 2004 ADAAG requires newly constructed or 
altered wading pools to provide at least one sloped means of entry 
to the deepest part of the pool. The Department was concerned about 
the potential impact of this new requirement on existing wading 
pools. Therefore, in the NPRM, the Department sought comments on 
whether existing wading pools that are not being altered should be 
exempt from this requirement, asking, ``[w]hat site constraints 
exist in existing facilities that could make it difficult or 
infeasible to install a sloped entry in an existing wading pool? 
Should existing wading pools that are not being altered be exempt 
from the requirement to provide a sloped entry? '' 73 FR 34466, 
34487-88 (June 17, 2008). Most commenters agreed that existing 
wading pools that are not being altered should be exempt from this 
requirement. Almost all commenters felt that during alterations a 
sloped entry should be provided unless it was technically infeasible 
to do so. Several commenters felt that the required clear deck space 
surrounding a pool provided sufficient space for a sloped entry 
during alterations.
    The Department also solicited comments on the possibility of 
exempting existing wading pools from the obligation to provide 
program accessibility. Most commenters argued that installing a 
sloped entry in an existing wading pool is not very feasible. 
Because covered entities are not required to undertake modifications 
that would be technically infeasible, the Department believes that 
the rule as drafted provides sufficient protection from unwarranted 
expense to the operators of small existing wading pools. Other 
existing wading pools, particularly those larger pools associated 
with facilities such as aquatic centers or water parks, must be 
assessed on a case-by-case basis. Therefore, the Department has not 
included such an exemption for wading pools in its final rule.
    Saunas and steam rooms. The 1991 Standards do not address saunas 
and steam rooms. Section 35.150(b)(5)(iii) of the NPRM exempted 
existing saunas and steam rooms that seat only two individuals and 
were not being altered from section 241 of the 2004 ADAAG, which 
requires an accessible turning space. Two commenters objected to 
this exemption as unnecessary, and argued that the cost of 
accessible saunas is not high and public entities still have an 
undue financial and administrative burdens defense.
    The Department considered these comments and has decided to 
eliminate the exemption for existing saunas and steam rooms that 
seat only two people. Such an exemption is unnecessary because 
covered entities will not be subject to program accessibility 
requirements to make existing saunas and steam rooms accessible if 
doing so constitutes an undue financial and administrative burden. 
The Department believes it is likely that because of their pre-
fabricated forms, which include built-in seats, it would be either 
technically infeasible or an undue financial and administrative 
burden to modify such saunas and steams rooms. Consequently, a 
separate exemption for saunas and steam rooms would have been 
superfluous. Finally, employing the program accessibility standard 
for small saunas and steam rooms is consistent with the Department's 
decisions regarding the proposed exemptions for play areas and 
swimming pools.
    Several commenters also argued in favor of a specific exemption 
for existing spas. The Department notes that the technical 
infeasibility and program accessibility defenses are applicable 
equally to existing spas and declines to adopt such an exemption.
    Other recreational facilities. In the NPRM, the Department asked 
about a number of issues relating to recreation facilities such as 
team or player seating areas, areas of sport activity, exercise 
machines, boating facilities, fishing piers and platforms, and 
miniature golf courses. The Department's questions addressed the 
costs and benefits of applying the 2004 ADAAG to these spaces and 
facilities and the application of the specific technical 
requirements in the 2004 ADAAG for these spaces and facilities. The 
discussion of the comments received by the Department on these 
issues and the Department's response to those comments can be found 
in either the section of Appendix A to this rule entitled ``Other 
Issues,'' or in Appendix B to the final title III rule, which will 
be published today elsewhere in this volume.

Section 35.151 New construction and alterations

    Section 35.151(a), which provided that those facilities 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, is 
unchanged in the final rule, but has been redesignated as Sec.  
35.151(a)(1). The Department has added a new section, designated as 
Sec.  35.151(a)(2), to provide that 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. This exception was contained in the title 
III regulation and in the 1991 Standards (applicable to both public 
accommodations and facilities used by public entities), so it has 
applied to any covered facility that was constructed under the 1991 
Standards since the effective date of the ADA. The Department added 
it to the text of Sec.  35.151 to maintain consistency between the 
design requirements that apply under title II and those that apply 
under title III. The Department received no significant comments 
about this section.

Section 35.151(b) Alterations

    The 1991 title II regulation does not contain any specific 
regulatory language comparable to the 1991 title III regulation 
relating to alterations and path of travel for covered entities, 
although the 1991 Standards describe standards for path of travel 
during alterations to a primary function. See 28 CFR part 36, app 
A., section 4.1.6(a) (2009).
    The path of travel requirements contained in the title III 
regulation are based on section 303(a)(2) of the ADA, 42 U.S.C. 
12183(a)(2), 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 
it--is readily accessible to and usable by individuals with 
disabilities, including individuals who use wheelchairs.
    The NPRM proposed amending Sec.  35.151 to add both the path of 
travel requirements and the exemption relating to barrier removal 
(as modified to apply to the program accessibility standard in title 
II) that are contained in the title III regulation to the title II 
regulation. Proposed Sec.  35.151(b)(4) contained the requirements 
for path of travel. Proposed Sec.  35.151(b)(2) stated that the path 
of travel requirements of Sec.  35.151(b)(4) shall not apply to 
measures taken solely to comply with program accessibility 
requirements.
    Where the specific requirements for path of travel apply under 
title III, they are limited to the extent that the cost and scope of 
alterations to the path of travel are disproportionate to the cost 
of the overall alteration, as determined under criteria established 
by the Attorney General.
    The Access Board included the path of travel requirement for 
alterations to facilities covered by the standards (other than those 
subject to the residential facilities standards) in section 202.4 of 
2004 ADAAG. Section 35.151(b)(4)(iii) of the final rule establishes 
the criteria for determining when the cost of

[[Page 56211]]

alterations to the path of travel is ``disproportionate'' to the 
cost of the overall alteration.
    The NPRM also provided that areas such as supply storage rooms, 
employee lounges and locker rooms, janitorial closets, entrances, 
and corridors are not areas containing a primary function. Nor are 
restroom areas considered to contain a primary function unless the 
provision of restrooms is a primary purpose of the facility, 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 Department is not changing the requirements for program 
accessibility. As provided in Sec.  35.151(b)(2) of the regulation, 
the path of travel requirements of Sec.  35.151(b)(4) only apply to 
alterations undertaken solely for purposes other than to meet the 
program accessibility requirements. The exemption for the specific 
path of travel requirement was included in the regulation to ensure 
that the specific requirements and disproportionality exceptions for 
path of travel are not applied when areas are being altered to meet 
the title II program accessibility requirements in Sec.  35.150. In 
contrast, when areas are being altered to meet program accessibility 
requirements, they must comply with all of the applicable 
requirements referenced in section 202 of the 2010 Standards. A 
covered title II entity must provide accessibility to meet the 
requirements of Sec.  35.150 unless doing so is an undue financial 
and administrative burden in accordance with Sec.  35.150(a)(3). A 
covered title II entity may not use the disproportionality exception 
contained in the path of travel provisions as a defense to providing 
an accessible route as part of its obligation to provide program 
accessibility. The undue financial and administrative burden 
standard does not contain any bright line financial tests.
    The Department's proposed Sec.  35.151(b)(4) adopted the 
language now contained in Sec.  36.403 of the title III regulation, 
including the disproportionality limitation (i.e., 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 percent of the cost of the alteration to the primary 
function area). Proposed Sec.  35.151(b)(2) provided that the path 
of travel requirements do not apply to alterations undertaken solely 
to comply with program accessibility requirements.
    The Department received a substantial number of comments 
objecting to the Department's adoption of the exemption for the path 
of travel requirements when alterations are undertaken solely to 
meet program accessibility requirements. These commenters argued 
that the Department had no statutory basis for providing this 
exemption nor does it serve any purpose. In addition, these 
commenters argued that the path of travel exemption has the effect 
of placing new limitations on the obligations to provide program 
access. A number of commenters argued that doing away with the path 
of travel requirement would render meaningless the concept of 
program access. They argued that just as the requirement to provide 
an accessible path of travel to an altered area (regardless of the 
reason for the alteration), including making the restrooms, 
telephones, and drinking fountains that serve the altered area 
accessible, is a necessary requirement in other alterations, it is 
equally necessary for alterations made to provide program access. 
Several commenters expressed concern that a readily accessible path 
of travel be available to ensure that persons with disabilities can 
get to the physical location in which programs are held. Otherwise, 
they will not be able to access the public entity's service, 
program, or activity. Such access is a cornerstone of the 
protections provided by the ADA. Another commenter argued that it 
would be a waste of money to create an accessible facility without 
having a way to get to the primary area. This commenter also stated 
that the International Building Code (IBC) requires the path of 
travel to a primary function area, up to 20 percent of the cost of 
the project. Another commenter opposed the exemption, stating that 
the trigger of an alteration is frequently the only time that a 
facility must update its facilities to comply with evolving 
accessibility standards.
    In the Department's view, the commenters objecting to the path 
of travel exemption contained in Sec.  35.151(b)(2) did not 
understand the intention behind the exemption. The exemption was not 
intended to eliminate any existing requirements related to 
accessibility for alterations undertaken in order to meet program 
access obligations under Sec.  35.149 and Sec.  35.150. Rather, it 
was intended to ensure that covered entities did not apply the path 
of travel requirements in lieu of the overarching requirements in 
this Subpart that apply when making a facility accessible in order 
to comply with program accessibility. The exemption was also 
intended to make it clear that the disproportionality test contained 
in the path of travel standards is not applicable in determining 
whether providing program access results in an undue financial and 
administration burden within the meaning of Sec.  35.150(a)(3). The 
exemption was also provided to maintain consistency with the title 
III path of travel exemption for barrier removal, see Sec.  
36.304(d), in keeping with the Department's regulatory authority 
under title II of the ADA. See 42 U.S.C. 12134(b); see also H. R 
Rep. No. 101B485, pt. 2, at 84 (1990) (``The committee intends, 
however, that the forms of discrimination prohibited by section 202 
be identical to those set out in the applicable provisions of titles 
I and III of this legislation.'').
    For title II entities, the path of travel requirements are of 
significance in those cases where an alteration is being made solely 
for reasons other than program accessibility. For example, a public 
entity might have six courtrooms in two existing buildings and might 
determine that only three of those courtrooms and the public use and 
common use areas serving those courtrooms in one building are needed 
to be made accessible in order to satisfy its program access 
obligations. When the public entity makes those courtrooms and the 
public use and common use areas serving them accessible in order to 
meet its program access obligations, it will have to comply with the 
2010 Standards unless the public entity can demonstrate that full 
compliance would result in undue financial and administrative 
burdens as described in Sec.  35.150(a)(3). If such action would 
result in an undue financial or administrative burden, the public 
entity would nevertheless be required to take some other action that 
would not result in such an alteration or such burdens but would 
ensure that the benefits and services provided by the public entity 
are readily accessible to persons with disabilities. When the public 
entity is making modifications to meet its program access 
obligation, it may not rely on the path of travel exception under 
Sec.  35.151(b)(4), which limits the requirement to those 
alterations where the cost and scope of the alterations are not 
disproportionate to the cost and scope of the overall alterations. 
If the public entity later decides to alter courtrooms in the other 
building, for purposes of updating the facility (and, as previously 
stated, has met its program access obligations) then in that case, 
the public entity would have to comply with the path of travel 
requirements in the 2010 Standards subject to the disproportionality 
exception set forth in Sec.  35.151(b)(4).
    The Department has slightly revised proposed Sec.  35.151(b)(2) 
to make it clearer that the path of travel requirements only apply 
when alterations are undertaken solely for purposes other than 
program accessibility.

Section 35.151(b)(4)(ii)(C) Path of travel--safe harbor

    In Sec.  35.151(b)(4)(ii)(C) of the NPRM, the Department 
included a provision that stated that public entities that have 
brought required elements of path of travel into compliance with the 
1991 Standards are not required to retrofit those elements in order 
to reflect incremental changes in the 2010 Standards solely because 
of an alteration to a primary function area that is served by that 
path of travel. In these circumstances, the public entity is 
entitled to a safe harbor and is only required to modify elements to 
comply with the 2010 Standards if the public entity is planning an 
alteration to the element.
    A substantial number of commenters objected to the Department's 
imposition of a safe harbor for alterations to facilities of public 
entities that comply with the 1991 Standards. These commenters 
argued that if a public entity is already in the process of altering 
its facility, there should be a legal requirement that individuals 
with disabilities be entitled to increased accessibility by using 
the 2010 Standards for path of travel work. They also stated that 
they did not believe there was a statutory basis for 
``grandfathering'' facilities that comply with the 1991 Standards.
    The ADA is silent on the issue of ``grandfathering'' or 
establishing a safe harbor for measuring compliance in situations 
where the covered entity is not undertaking a planned alteration to 
specific building elements. The ADA delegates to the Attorney 
General the responsibility for issuing regulations that define the 
parameters of

[[Page 56212]]

covered entities' obligations when the statute does not directly 
address an issue. This regulation implements that delegation of 
authority.
    One commenter proposed that a previous record of barrier removal 
be one of the factors in determining, prospectively, what renders a 
facility, when viewed in its entirety, usable and accessible to 
persons with disabilities. Another commenter asked the Department to 
clarify, at a minimum, that to the extent compliance with the 1991 
Standards does not provide program access, particularly with regard 
to areas not specifically addressed in the 1991 Standards, the safe 
harbor will not operate to relieve an entity of its obligations to 
provide program access.
    One commenter supported the proposal to add a safe harbor for 
path of travel.
    The final rule retains the safe harbor for required elements of 
a path of travel to altered primary function areas for public 
entities that have already complied with the 1991 Standards with 
respect to those required elements. The Department believes that 
this safe harbor strikes an appropriate balance between ensuring 
that individuals with disabilities are provided access to buildings 
and facilities and potential financial burdens on existing public 
entities that are undertaking alterations subject to the 2010 
Standards. This safe harbor is not a blanket exemption for 
facilities. If a public entity undertakes an alteration to a primary 
function area, only the required elements of a path of travel to 
that area that already comply with the 1991 Standards are subject to 
the safe harbor. If a public entity undertakes an alteration to a 
primary function area and the required elements of a path of travel 
to the altered area do not comply with the 1991 Standards, then the 
public entity must bring those elements into compliance with the 
2010 Standards.

Section 35.151(b)(3) Alterations to historic facilities

    The final rule renumbers the requirements for alterations to 
historic facilities enumerated in current Sec.  35.151(d)(1) and (2) 
as Sec.  35.151(b)(3)(i) and (ii). Currently, the regulation 
provides that alterations to historic facilities shall comply to the 
maximum extent feasible with section 4.1.7 of UFAS or section 4.1.7 
of the 1991 Standards. See 28 CFR 35.151(d)(1). Section 
35.151(b)(3)(i) of the final rule eliminates the option of using 
UFAS for alterations that commence on or after March 15, 2012. The 
substantive requirement in current Sec.  35.151(d)(2)--that 
alternative methods of access shall be provided pursuant to the 
requirements of Sec.  35.150 if 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--is contained in Sec.  35.151(b)(3)(ii).

Section 35.151(c) Accessibility standards for new construction and 
alterations

    Section 35.151(c) of the NPRM proposed to adopt ADA Chapter 1, 
ADA Chapter 2, and Chapters 3 through 10 of the Americans with 
Disabilities Act and Architectural Barriers Act Guidelines (2004 
ADAAG) into the ADA Standards for Accessible Design (2010 
Standards). As the Department has noted, the development of these 
standards represents the culmination of a lengthy effort by the 
Access Board to update its guidelines, to make the Federal 
guidelines consistent to the extent permitted by law, and to 
harmonize the Federal requirements with the private sector model 
codes that form the basis of many State and local building code 
requirements. The full text of the 2010 Standards is available for 
public review on the ADA Home Page (http://www.ada.gov) and on the 
Access Board's Web site (http://www.access-board.gov/gs.htm) (last 
visited June 24, 2010). The Access Board site also includes an 
extensive discussion of the development of the 2004 ADA/ABA 
Guidelines, and a detailed comparison of the 1991 Standards, the 
2004 ADA/ABA Guidelines, and the 2003 International Building Code.
    Section 204 of the ADA, 42 U.S.C. 12134, directs the Attorney 
General to issue regulations to implement title II that are 
consistent with the minimum guidelines published by the Access 
Board. The Attorney General (or his designee) is a statutory member 
of the Access Board (see 29 U.S.C. 792(a)(1)(B(vii)) and was 
involved in the development of the 2004 ADAAG. Nevertheless, during 
the process of drafting the NPRM, the Department reviewed the 2004 
ADAAG to determine if additional regulatory provisions were 
necessary. As a result of this review, the Department decided to 
propose new sections, which were contained in Sec.  35.151(e)-(h) of 
the NPRM, to clarify how the Department will apply the proposed 
standards to social service center establishments, housing at places 
of education, assembly areas, and medical care facilities. Each of 
these provisions is discussed below.
    Congress anticipated that there would be a need for close 
coordination of the ADA building requirements with State and local 
building code requirements. Therefore, the ADA authorized the 
Attorney General to establish an ADA code certification process 
under title III of the ADA. That process is addressed in 28 CFR part 
36, subpart F. Revisions to that process are addressed in the 
regulation amending the title III regulation published elsewhere in 
the Federal Register today. In addition, the Department operates an 
extensive technical assistance program. The Department anticipates 
that once this rule is final, revised technical assistance material 
will be issued to provide guidance about its implementation.
    Section 35.151(c) of the 1991 title II regulation establishes 
two standards for accessible new construction and alteration. Under 
paragraph (c), design, construction, or alteration of facilities in 
conformance with UFAS or with the 1991 Standards (which, at the time 
of the publication of the rule were also referred to as the 
Americans with Disabilities Act Accessibility Guidelines for 
Buildings and Facilities (1991 ADAAG)) is deemed to comply with the 
requirements of this section with respect to those facilities 
(except that if the 1991 Standards are chosen, the elevator 
exemption does not apply). The 1991 Standards were based on the 1991 
ADAAG, which was initially developed by the Access Board as 
guidelines for the accessibility of buildings and facilities that 
are subject to title III. The Department adopted the 1991 ADAAG as 
the standards for places of public accommodation and commercial 
facilities under title III of the ADA and it was published as 
Appendix A to the Department's regulation implementing title III, 56 
FR 35592 (July 26, 1991) as amended, 58 FR 17522 (April 5, 1993), 
and as further amended, 59 FR 2675 (Jan. 18, 1994), codified at 28 
CFR part 36 (2009).
    Section 35.151(c) of the final rule adopts the 2010 Standards 
and establishes the compliance date and triggering events for the 
application of those standards to both new construction and 
alterations. Appendix B of the final title III rule (Analysis and 
Commentary on the 2010 ADA Standards for Accessible Design) (which 
will be published today elsewhere in this volume and codified as 
Appendix B to 28 CFR part 36) provides a description of the major 
changes in the 2010 Standards (as compared to the 1991 ADAAG) and a 
discussion of the public comments that the Department received on 
specific sections of the 2004 ADAAG. A number of commenters asked 
the Department to revise certain provisions in the 2004 ADAAG in a 
manner that would reduce either the required scoping or specific 
technical accessibility requirements. As previously stated, although 
the ADA requires the enforceable standards issued by the Department 
under title II and title III to be consistent with the minimum 
guidelines published by the Access Board, it is the sole 
responsibility of the Attorney General to promulgate standards and 
to interpret and enforce those standards. The guidelines adopted by 
the Access Board are ``minimum guidelines.'' 42 U.S.C. 12186(c).
    Compliance date. When the ADA was enacted, the effective dates 
for various provisions were delayed in order to provide time for 
covered entities to become familiar with their new obligations. 
Titles II and III of the ADA generally became effective on January 
26, 1992, six months after the regulations were published. See 42 
U.S.C. 12131 note; 42 U.S.C. 12181 note. New construction under 
title II and alterations under either title II or title III had to 
comply with the design standards on that date. See 42 U.S.C. 
12183(a)(1). For new construction under title III, the requirements 
applied to facilities designed and constructed for first occupancy 
after January 26, 1993--18 months after the 1991 Standards were 
published by the Department. In the NPRM, the Department proposed to 
amend Sec.  35.151(c)(1) by revising the current language to limit 
the application of the 1991 standards to facilities on which 
construction commences within six months of the final rule adopting 
revised standards. The NPRM also proposed adding paragraph (c)(2) to 
Sec.  35.151, which states that facilities on which construction 
commences on or after the date six months following the effective 
date of the final rule shall comply with the proposed standards 
adopted by that rule.
    As a result, under the NPRM, for the first six months after the 
effective date, public entities would have the option to use either

[[Page 56213]]

UFAS or the 1991 Standards and be in compliance with title II. Six 
months after the effective date of the rule, the new standards would 
take effect. At that time, construction in accordance with UFAS 
would no longer satisfy ADA requirements. The Department stated that 
in order to avoid placing the burden of complying with both 
standards on public entities, the Department would coordinate a 
government-wide effort to revise Federal agencies' section 504 
regulations to adopt the 2004 ADAAG as the standard for new 
construction and alterations.
    The purpose of the proposed six-month delay in requiring 
compliance with the 2010 Standards was to allow covered entities a 
reasonable grace period to transition between the existing and the 
proposed standards. For that reason, if a title II entity preferred 
to use the 2010 Standards as the standard for new construction or 
alterations commenced within the six-month period after the 
effective date of the final rule, such entity would be considered in 
compliance with title II of the ADA.
    The Department received a number of comments about the proposed 
six-month effective date for the title II regulation that were 
similar in content to those received on this issue for the proposed 
title III regulation. Several commenters supported the six-month 
effective date. One commenter stated that any revisions to its State 
building code becomes effective six months after adoption and that 
this has worked well. In addition, this commenter stated that since 
2004 ADAAG is similar to IBC 2006 and ICC/ANSI A117.1-2003, the 
transition should be easy. By contrast, another commenter advocated 
for a minimum 12-month effective date, arguing that a shorter 
effective date could cause substantial economic hardships to many 
cities and towns because of the lengthy lead time necessary for 
construction projects. This commenter was concerned that a six-month 
effective date could lead to projects having to be completely 
redrawn, rebid, and rescheduled to ensure compliance with the new 
standards. Other commenters advocated that the effective date be 
extended to at least 18 months after the publication of the rule. 
One of these commenters expressed concern that the kinds of 
bureaucratic organizations subject to the title II regulations lack 
the internal resources to quickly evaluate the regulatory changes, 
determine whether they are currently compliant with the 1991 
standards, and determine what they have to do to comply with the new 
standards. The other commenter argued that 18 months is the minimum 
amount of time necessary to ensure that projects that have already 
been designed and approved do not have to undergo costly design 
revisions at taxpayer expense.
    The Department is persuaded by the concerns raised by commenters 
for both the title II and III regulations that the six-month 
compliance date proposed in the NPRM for application of the 2010 
Standards may be too short for certain projects that are already in 
the midst of the design and permitting process. The Department has 
determined that for new construction and alterations, compliance 
with the 2010 Standards will not be required until 18 months from 
the date the final rule is published. Until the time compliance with 
the 2010 Standards is required, public entities will have the option 
of complying with the 2010 Standards, the UFAS, or the 1991 
Standards. However, public entities that choose to comply with the 
2010 Standards in lieu of the 1991 Standards or UFAS prior to the 
compliance date described in this rule must choose one of the three 
standards, and may not rely on some of the requirements contained in 
one standard and some of the requirements contained in the other 
standards.
    Triggering event. In Sec.  35.151(c)(2) of the NPRM, the 
Department proposed that the commencement of construction serve as 
the triggering event for applying the proposed standards to new 
construction and alterations under title II. This language is 
consistent with the triggering event set forth in Sec.  35.151(a) of 
the 1991 title II regulation. The Department received only four 
comments on this section of the title II rule. Three commenters 
supported the use of ``start of construction'' as the triggering 
event. One commenter argued that the Department should use the 
``last building permit or start of physical construction, whichever 
comes first,'' stating that ``altering a design after a building 
permit has been issued can be an undue burden.''
    After considering these comments, the Department has decided to 
continue to use the commencement of physical construction as the 
triggering event for application of the 2010 Standards for entities 
covered by title II. The Department has also added clarifying 
language at Sec.  35.151(c)(4) to the regulation to make it clear 
that the date of ceremonial groundbreaking or the date a structure 
is razed to make it possible for construction of a facility to take 
place does not qualify as the commencement of physical construction.
    Section 234 of the 2010 Standards provides accessibility 
guidelines for newly designed and constructed amusement rides. The 
amusement ride provisions do not provide a ``triggering event'' for 
new construction or alteration of an amusement ride. An industry 
commenter requested that the triggering event of ``first use,'' as 
noted in the Advisory note to section 234.1 of the 2004 ADAAG, be 
included in the final rule. The Advisory note provides that ``[a] 
custom designed and constructed ride is new upon its first use, 
which is the first time amusement park patrons take the ride.'' The 
Department declines to treat amusement rides differently than other 
types of new construction and alterations. Under the final rule, 
they are subject to Sec.  35.151(c). Thus, newly constructed and 
altered amusement rides shall comply with the 2010 Standards if the 
start of physical construction or the alteration is on or after 18 
months from the publication date of this rule. The Department also 
notes that section 234.4.2 of the 2010 Standards only applies where 
the structural or operational characteristics of an amusement ride 
are altered. It does not apply in cases where the only change to a 
ride is the theme.
    Noncomplying new construction and alterations. The element-by-
element safe harbor referenced in Sec.  35.150(b)(2) has no effect 
on new or altered elements in existing facilities that were subject 
to the 1991 Standards or UFAS on the date that they were constructed 
or altered, but do not comply with the technical and scoping 
specifications for those elements in the 1991 Standards or UFAS. 
Section 35.151(c)(5) of the final rule sets forth the rules for 
noncompliant new construction or alterations in facilities that were 
subject to the requirements of this part. Under those provisions, 
noncomplying new construction and alterations constructed or altered 
after the effective date of the applicable ADA requirements and 
before March 15, 2012 shall, before March 15, 2012, be made 
accessible in accordance with either the 1991 Standards, UFAS, or 
the 2010 Standards. Noncomplying new construction and alterations 
constructed or altered after the effective date of the applicable 
ADA requirements and before March 15, 2012, shall, on or after March 
15, 2012 be made accessible in accordance with the 2010 Standards.

Section 35.151(d) Scope of coverage

    In the NPRM, the Department proposed a new provision, Sec.  
35.151(d), to clarify that the requirements established by Sec.  
35.151, including those contained in the 2004 ADAAG, prescribe what 
is necessary to ensure that buildings and facilities, including 
fixed or built-in elements in new or altered facilities, are 
accessible to individuals with disabilities. Once the construction 
or alteration of a facility has been completed, all other aspects of 
programs, services, and activities conducted in that facility are 
subject to the operational requirements established in this final 
rule. Although the Department may use the requirements of the 2010 
Standards as a guide to determining when and how to make equipment 
and furnishings accessible, those determinations fall within the 
discretionary authority of the Department.
    The Department also wishes to clarify that the advisory notes, 
appendix notes, and figures that accompany the 1991 and 2010 
Standards do not establish separately enforceable requirements 
unless specifically stated otherwise in the text of the standards. 
This clarification has been made to address concerns expressed by 
ANPRM commenters who mistakenly believed that the advisory notes in 
the 2004 ADAAG established requirements beyond those established in 
the text of the guidelines (e.g., Advisory 504.4 suggests, but does 
not require, that covered entities provide visual contrast on stair 
tread nosing to make them more visible to individuals with low 
vision). The Department received no significant comments on this 
section and it is unchanged in the final rule.
    Definitions of residential facilities and transient lodging. The 
2010 Standards add a definition of ``residential dwelling unit'' and 
modify the current definition of ``transient lodging.'' Under 
section 106.5 of the 2010 Standards, ``residential dwelling unit'' 
is defined as ``[a] unit intended to be used as a residence, that is 
primarily long-term in nature'' and does not include transient 
lodging, inpatient medical care, licensed long-term care, and 
detention or correctional facilities. Additionally, section 106.5 of 
the

[[Page 56214]]

2010 Standards changes the definition of ``transient lodging'' to a 
building or facility ``containing one or more guest room(s) for 
sleeping that provides accommodations that are primarily short-term 
in nature.'' ``Transient lodging'' does not include residential 
dwelling units intended to be used as a residence. The references to 
``dwelling units'' and ``dormitories'' that are in the definition of 
the 1991 Standards are omitted from the 2010 Standards.
    The comments about the application of transient lodging or 
residential standards to social service center establishments, and 
housing at a place of education are addressed separately below. The 
Department received one additional comment on this issue from an 
organization representing emergency response personnel seeking an 
exemption from the transient lodging accessibility requirements for 
crew quarters and common use areas serving those crew quarters 
(e.g., locker rooms, exercise rooms, day room) that are used 
exclusively by on-duty emergency response personnel and that are not 
used for any public purpose. The commenter argued that since 
emergency response personnel must meet certain physical 
qualifications that have the effect of exempting persons with 
mobility disabilities, there is no need to build crew quarters and 
common use areas serving those crew quarters to meet the 2004 ADAAG. 
In addition, the commenter argued that applying the transient 
lodging standards would impose significant costs and create living 
space that is less usable for most emergency response personnel.
    The ADA does not exempt spaces because of a belief or policy 
that excludes persons with disabilities from certain work. However, 
the Department believes that crew quarters that are used exclusively 
as a residence by emergency response personnel and the kitchens and 
bathrooms exclusively serving those quarters are more like 
residential dwelling units and are therefore covered by the 
residential dwelling standards in the 2010 Standards, not the 
transient lodging standards. The residential dwelling standards 
address most of the concerns of the commenter. For example, the 
commenter was concerned that sinks in kitchens and lavatories in 
bathrooms that are accessible under the transient lodging standards 
would be too low to be comfortably used by emergency response 
personnel. The residential dwelling standards allow such features to 
be adaptable so that they would not have to be lowered until 
accessibility was needed. Similarly, grab bars and shower seats 
would not have to be installed at the time of construction provided 
that reinforcement has been installed in walls and located so as to 
permit their installation at a later date.

Section 35.151(e) Social service center establishments

    In the NPRM, the Department proposed a new Sec.  35.151(e) 
requiring group homes, halfway houses, shelters, or similar social 
service center establishments that provide temporary sleeping 
accommodations or residential dwelling units to comply with the 
provisions of the 2004 ADAAG that apply to residential facilities, 
including, but not limited to, the provisions in sections 233 and 
809.
    The NPRM explained that this proposal was based on two important 
changes in the 2004 ADAAG. First, for the first time, residential 
dwelling units are explicitly covered in the 2004 ADAAG in section 
233. Second, the 2004 ADAAG eliminates the language contained in the 
1991 Standards addressing scoping and technical requirements for 
homeless shelters, group homes, and similar social service center 
establishments. Currently, such establishments are covered in 
section 9.5 of the transient lodging section of the 1991 Standards. 
The deletion of section 9.5 creates an ambiguity of coverage that 
must be addressed.
    The NPRM explained the Department's belief that transferring 
coverage of social service center establishments from the transient 
lodging standards to the residential facilities standards would 
alleviate conflicting requirements for social service center 
providers. The Department believes that a substantial percentage of 
social service center establishments are recipients of Federal 
financial assistance from the Department of Housing and Urban 
Development (HUD). The Department of Health and Human Services (HHS) 
also provides financial assistance for the operation of shelters 
through the Administration for Children and Families programs. As 
such, these establishments are covered both by the ADA and section 
504 of the Rehabilitation Act. UFAS is currently the design standard 
for new construction and alterations for entities subject to section 
504. The two design standards for accessibility--the 1991 Standards 
and UFAS--have confronted many social service providers with 
separate, and sometimes conflicting, requirements for design and 
construction of facilities. To resolve these conflicts, the 
residential facilities standards in the 2004 ADAAG have been 
coordinated with the section 504 requirements. The transient lodging 
standards, however, are not similarly coordinated. The deletion of 
section 9.5 of the 1991 Standards from the 2004 ADAAG presented two 
options: (1) Require coverage under the transient lodging standards, 
and subject such facilities to separate, conflicting requirements 
for design and construction; or (2) require coverage under the 
residential facilities standards, which would harmonize the 
regulatory requirements under the ADA and section 504. The 
Department chose the option that harmonizes the regulatory 
requirements: coverage under the residential facilities standards.
    In the NPRM, the Department expressed concern that the 
residential facilities standards do not include a requirement for 
clear floor space next to beds similar to the requirement in the 
transient lodging standards and as a result, the Department proposed 
adding a provision that would require certain social service center 
establishments that provide sleeping rooms with more than 25 beds to 
ensure that a minimum of 5 percent of the beds have clear floor 
space in accordance with section 806.2.3 or 3004 ADAAG.
    In the NPRM, the Department requested information from providers 
who operate homeless shelters, transient group homes, halfway 
houses, and other social service center establishments, and from the 
clients of these facilities who would be affected by this proposed 
change, asking, ``[t]o what extent have conflicts between the ADA 
and section 504 affected these facilities? What would be the effect 
of applying the residential dwelling unit requirements to these 
facilities, rather than the requirements for transient lodging guest 
rooms?'' 73 FR 34466, 34491 (June 17, 2008).
    Many of the commenters supported applying the residential 
facilities requirements to social service center establishments, 
stating that even though the residential facilities requirements are 
less demanding in some instances, the existence of one clear 
standard will result in an overall increased level of accessibility 
by eliminating the confusion and inaction that are sometimes caused 
by the current existence of multiple requirements. One commenter 
also stated that ``it makes sense to treat social service center 
establishments like residential facilities because this is how these 
establishments function in practice.''
    Two commenters agreed with applying the residential facilities 
requirements to social service center establishments but recommended 
adding a requirement for various bathing options, such as a roll-in 
shower (which is not required under the residential standards).
    One commenter objected to the change and asked the Department to 
require that social service center establishments continue to comply 
with the transient lodging standards. One commenter stated that it 
did not agree that the standards for residential coverage would 
serve persons with disabilities as well as the 1991 transient 
lodging standards. This commenter expressed concern that the 
Department had eliminated guidance for social service agencies and 
that the rule should be put on hold until those safeguards are 
restored. Another commenter argued that the rule that would provide 
the greatest access for persons with disabilities should prevail.
    Several commenters argued for the application of the transient 
lodging standards to all social service center establishments except 
those that were ``intended as a person's place of abode,'' 
referencing the Department's question related to the definition of 
``place of lodging'' in the title III NPRM. One commenter stated 
that the International Building Code requires accessible units in 
all transient facilities. The commenter expressed concern that group 
homes should be built to be accessible, rather than adaptable.
    The Department continues to be concerned about alleviating the 
challenges for social service providers that are also subject to 
section 504 and would likely be subject to conflicting requirements 
if the transient lodging standards were applied. Thus, the 
Department has retained the requirement that social service center 
establishments comply with the residential dwelling standards. The 
Department believes, however, that social service center 
establishments that provide emergency shelter to large transient 
populations should be able to provide bathing facilities that are 
accessible to

[[Page 56215]]

persons with mobility disabilities who need roll-in showers. Because 
of the transient nature of the population of these large shelters, 
it will not be feasible to modify bathing facilities in a timely 
manner when faced with a need to provide a roll-in shower with a 
seat when requested by an overnight visitor. As a result, the 
Department has added a requirement that social service center 
establishments with sleeping accommodations for more than 50 
individuals must provide at least one roll-in shower with a seat 
that complies with the relevant provisions of section 608 of the 
2010 Standards. Transfer-type showers are not permitted in lieu of a 
roll-in shower with a seat and the exceptions in sections 608.3 and 
608.4 for residential dwelling units are not permitted. When 
separate shower facilities are provided for men and for women, at 
least one roll-in shower shall be provided for each group. This 
supplemental requirement to the residential facilities standards is 
in addition to the supplemental requirement that was proposed in the 
NPRM for clear floor space in sleeping rooms with more than 25 beds.
    The Department also notes that while dwelling units at some 
social service center establishments are also subject to the Fair 
Housing Act (FHAct) design and construction requirements that 
require certain features of adaptable and accessible design, FHAct 
units do not provide the same level of accessibility that is 
required for residential facilities under the 2010 Standards. The 
FHAct requirements, where also applicable, should not be considered 
a substitute for the 2010 Standards. Rather, the 2010 Standards must 
be followed in addition to the FHAct requirements.
    The Department also notes that whereas the NPRM used the term 
``social service establishment,'' the final rule uses the term 
``social service center establishment.'' The Department has made 
this editorial change so that the final rule is consistent with the 
terminology used in the ADA. See 42 U.S.C. 12181(7)(k).

Section 35.151(f) Housing at a place of education

    The Department of Justice and the Department of Education share 
responsibility for regulation and enforcement of the ADA in 
postsecondary educational settings, including its requirements for 
architectural features. In addition, the Department of Housing and 
Urban Development (HUD) has enforcement responsibility for housing 
subject to title II of the ADA. Housing facilities in educational 
settings range from traditional residence halls and dormitories to 
apartment or townhouse-style residences. In addition to title II of 
the ADA, public universities and schools that receive Federal 
financial assistance are also subject to section 504, which contains 
its own accessibility requirements through the application of UFAS. 
Residential housing in an educational setting is also covered by the 
FHAct, which requires newly constructed multifamily housing to 
include certain features of accessible and adaptable design. Covered 
entities subject to the ADA must always be aware of, and comply 
with, any other Federal statutes or regulations that govern the 
operation of residential properties.
    Although the 1991 Standards mention dormitories as a form of 
transient lodging, they do not specifically address how the ADA 
applies to dormitories or other types of residential housing 
provided in an educational setting. The 1991 Standards also do not 
contain any specific provisions for residential facilities, allowing 
covered entities to elect to follow the residential standards 
contained in UFAS. Although the 2004 ADAAG contains provisions for 
both residential facilities and transient lodging, the guidelines do 
not indicate which requirements apply to housing provided in an 
educational setting, leaving it to the adopting agencies to make 
that choice. After evaluating both sets of standards, the Department 
concluded that the benefits of applying the transient lodging 
standards outweighed the benefits of applying the residential 
facilities standards. Consequently, in the NPRM, the Department 
proposed a new Sec.  35.151(f) that provided that residence halls or 
dormitories operated by or on behalf of places of education shall 
comply with the provisions of the proposed standards for transient 
lodging, including, but not limited to, the provisions in sections 
224 and 806 of the 2004 ADAAG.
    Both public and private school housing facilities have varied 
characteristics. College and university housing facilities typically 
provide housing for up to one academic year, but may be closed 
during school vacation periods. In the summer, they are often used 
for short-term stays of one to three days, a week, or several 
months. Graduate and faculty housing is often provided year-round in 
the form of apartments, which may serve individuals or families with 
children. These housing facilities are diverse in their layout. Some 
are double-occupancy rooms with a shared toilet and bathing room, 
which may be inside or outside the unit. Others may contain cluster, 
suite, or group arrangements where several rooms are located inside 
a defined unit with bathing, kitchen, and similar common facilities. 
In some cases, these suites are indistinguishable in features from 
traditional apartments. Universities may build their own housing 
facilities or enter into agreements with private developers to 
build, own, or lease housing to the educational institution or to 
its students. Academic housing may be located on the campus of the 
university or may be located in nearby neighborhoods.
    Throughout the school year and the summer, academic housing can 
become program areas in which small groups meet, receptions and 
educational sessions are held, and social activities occur. The 
ability to move between rooms--both accessible rooms and standard 
rooms--in order to socialize, to study, and to use all public use 
and common use areas is an essential part of having access to these 
educational programs and activities. Academic housing is also used 
for short-term transient educational programs during the time 
students are not in regular residence and may be rented out to 
transient visitors in a manner similar to a hotel for special 
university functions.
    The Department was concerned that applying the new construction 
requirements for residential facilities to educational housing 
facilities could hinder access to educational programs for students 
with disabilities. Elevators are not generally required under the 
2004 ADAAG residential facilities standards unless they are needed 
to provide an accessible route from accessible units to public use 
and common use areas, while under the 2004 ADAAG as it applies to 
other types of facilities, multistory public facilities must have 
elevators unless they meet very specific exceptions. In addition, 
the residential facilities standards do not require accessible roll-
in showers in bathrooms, while the transient lodging requirements 
require some of the accessible units to be served by bathrooms with 
roll-in showers. The transient lodging standards also require that a 
greater number of units have accessible features for persons with 
communication disabilities. The transient lodging standards provide 
for installation of the required accessible features so that they 
are available immediately, but the residential facilities standards 
allow for certain features of the unit to be adaptable. For example, 
only reinforcements for grab bars need to be provided in residential 
dwellings, but the actual grab bars must be installed under the 
transient lodging standards. By contrast, the residential facilities 
standards do require certain features that provide greater 
accessibility within units, such as more usable kitchens, and an 
accessible route throughout the dwelling. The residential facilities 
standards also require 5 percent of the units to be accessible to 
persons with mobility disabilities, which is a continuation of the 
same scoping that is currently required under UFAS, and is therefore 
applicable to any educational institution that is covered by section 
504. The transient lodging standards require a lower percentage of 
accessible sleeping rooms for facilities with large numbers of rooms 
than is required by UFAS. For example, if a dormitory had 150 rooms, 
the transient lodging standards would require seven accessible rooms 
while the residential standards would require eight. In a large 
dormitory with 500 rooms, the transient lodging standards would 
require 13 accessible rooms and the residential facilities standards 
would require 25. There are other differences between the two sets 
of standards as well with respect to requirements for accessible 
windows, alterations, kitchens, accessible route throughout a unit, 
and clear floor space in bathrooms allowing for a side transfer.
    In the NPRM, the Department requested public comment on how to 
scope educational housing facilities, asking, ``[w]ould the 
residential facility requirements or the transient lodging 
requirements in the 2004 ADAAG be more appropriate for housing at 
places of education? How would the different requirements affect the 
cost when building new dormitories and other student housing?'' 73 
FR 34466, 34492 (June 17, 2008).
    The vast majority of the comments received by the Department 
advocated using the residential facilities standards for housing at 
a place of education instead of the transient lodging standards, 
arguing that housing at places of public education are in fact homes 
for the students who live in them. These commenters argued, however, 
that the

[[Page 56216]]

Department should impose a requirement for a variety of options for 
accessible bathing and should ensure that all floors of dormitories 
be accessible so that students with disabilities have the same 
opportunities to participate in the life of the dormitory community 
that are provided to students without disabilities. Commenters 
representing persons with disabilities and several individuals 
argued that, although the transient lodging standards may provide a 
few more accessible features (such as roll-in showers), the 
residential facilities standards would ensure that students with 
disabilities have access to all rooms in their assigned unit, not 
just to the sleeping room, kitchenette, and wet bar. One commenter 
stated that, in its view, the residential facilities standards were 
congruent with overlapping requirements from HUD, and that access 
provided by the residential facilities requirements within 
alterations would ensure dispersion of accessible features more 
effectively. This commenter also argued that while the increased 
number of required accessible units for residential facilities as 
compared to transient lodging may increase the cost of construction 
or alteration, this cost would be offset by a reduced need to adapt 
rooms later if the demand for accessible rooms exceeds the supply. 
The commenter also encouraged the Department to impose a 
visitability (accessible doorways and necessary clear floor space 
for turning radius) requirement for both the residential facilities 
and transient lodging requirements to allow students with mobility 
impairments to interact and socialize in a fully integrated fashion.
    Two commenters supported the Department's proposed approach. One 
commenter argued that the transient lodging requirements in the 2004 
ADAAG would provide greater accessibility and increase the 
opportunity of students with disabilities to participate fully in 
campus life. A second commenter generally supported the provision of 
accessible dwelling units at places of education, and pointed out 
that the relevant scoping in the International Building Code 
requires accessible units ``consistent with hotel accommodations.''
    The Department has considered the comments recommending the use 
of the residential facilities standards and acknowledges that they 
require certain features that are not included in the transient 
lodging standards and that should be required for housing provided 
at a place of education. In addition, the Department notes that 
since educational institutions often use their academic housing 
facilities as short-term transient lodging in the summers, it is 
important that accessible features be installed at the outset. It is 
not realistic to expect that the educational institution will be 
able to adapt a unit in a timely manner in order to provide 
accessible accommodations to someone attending a one-week program 
during the summer.
    The Department has determined that the best approach to this 
type of housing is to continue to require the application of 
transient lodging standards, but at the same time to add several 
requirements drawn from the residential facilities standards related 
to accessible turning spaces and work surfaces in kitchens, and the 
accessible route throughout the unit. This will ensure the 
maintenance of the transient lodging standard requirements related 
to access to all floors of the facility, roll-in showers in 
facilities with more than 50 sleeping rooms, and other important 
accessibility features not found in the residential facilities 
standards, but will also ensure usable kitchens and access to all 
the rooms in a suite or apartment.
    The Department has added a new definition to Sec.  35.104, 
``Housing at a Place of Education,'' and has revised Sec.  35.151(f) 
to reflect the accessible features that now will be required in 
addition to the requirements set forth under the transient lodging 
standards. The Department also recognizes that some educational 
institutions provide some residential housing on a year-round basis 
to graduate students and staff which is comparable to private rental 
housing, and which contains no facilities for educational 
programming. Section 35.151(f)(3) exempts from the transient lodging 
standards apartments or townhouse facilities provided by or on 
behalf of a place of education that are leased on a year-round basis 
exclusively to graduate students or faculty, and do not contain any 
public use or common use areas available for educational 
programming; instead, such housing shall comply with the 
requirements for residential facilities in sections 233 and 809 of 
the 2010 Standards.
    Section 35.151(f) uses the term ``sleeping room'' in lieu of the 
term ``guest room,'' which is the term used in the transient lodging 
standards. The Department is using this term because it believes 
that, for the most part, it provides a better description of the 
sleeping facilities used in a place of education than ``guest 
room.'' The final rule states that the Department intends the terms 
to be used interchangeably in the application of the transient 
lodging standards to housing at a place of education.

Section 35.151(g) Assembly areas

    In the NPRM, the Department proposed Sec.  35.151(g) to 
supplement the assembly area requirements of the 2004 ADAAG, which 
the Department is adopting as part of the 2010 Standards. The NPRM 
proposed at Sec.  35.151(g)(1) to require wheelchair spaces and 
companion seating locations to be dispersed to all levels of the 
facility and are served by an accessible route. The Department 
received no significant comments on this paragraph and has decided 
to adopt the proposed language with minor modifications. The 
Department has retained the substance of this section in the final 
rule but has clarified that the requirement applies to stadiums, 
arenas, and grandstands. In addition, the Department has revised the 
phrase ``wheelchair and companion seating locations'' to 
``wheelchair spaces and companion seats.''
    Section 35.151(g)(1) ensures that there is greater dispersion of 
wheelchair spaces and companion seats throughout stadiums, arenas, 
and grandstands than would otherwise be required by sections 221 and 
802 of the 2004 ADAAG. In some cases, the accessible route may not 
be the same route that other individuals use to reach their seats. 
For example, if other patrons reach their seats on the field by an 
inaccessible route (e.g., by stairs), but there is an accessible 
route that complies with section 206.3 of the 2010 Standards that 
could be connected to seats on the field, wheelchair spaces and 
companion seats must be placed on the field even if that route is 
not generally available to the public.
    Regulatory language that was included in the 2004 ADAAG 
advisory, but that did not appear in the NPRM, has been added by the 
Department in Sec.  35.151(g)(2). Section 35.151(g)(2) now requires 
an assembly area that has seating encircling, in whole or in part, a 
field of play or performance area such as an arena or stadium, to 
place wheelchair spaces and companion seats around the entire 
facility. This rule, which is designed to prevent a public entity 
from placing wheelchair spaces and companion seats on one side of 
the facility only, is consistent with the Department's enforcement 
practices and reflects its interpretation of section 4.33.3 of the 
1991 Standards.
    In the NPRM, the Department proposed Sec.  35.151(g)(2) which 
prohibits wheelchair spaces and companion seating locations from 
being ``located on, (or obstructed by) temporary platforms or other 
moveable structures.'' Through its enforcement actions, the 
Department discovered that some venues place wheelchair spaces and 
companion seats on temporary platforms that, when removed, reveal 
conventional seating underneath, or cover the wheelchair spaces and 
companion seats with temporary platforms on top of which they place 
risers of conventional seating. These platforms cover groups of 
conventional seats and are used to provide groups of wheelchair 
seats and companion seats.
    Several commenters requested an exception to the prohibition of 
the use of temporary platforms for public entities that sell most of 
their tickets on a season-ticket or other multi-event basis. Such 
commenters argued that they should be able to use temporary 
platforms because they know, in advance, that the patrons sitting in 
certain areas for the whole season do not need wheelchair spaces and 
companion seats. The Department declines to adopt such an exception. 
As it explained in detail in the NPRM, the Department believes that 
permitting the use of movable platforms that seat four or more 
wheelchair users and their companions have the potential to reduce 
the number of available wheelchair seating spaces below the level 
required, thus reducing the opportunities for persons who need 
accessible seating to have the same choice of ticket prices and 
amenities that are available to other patrons in the facility. In 
addition, use of removable platforms may result in instances where 
last minute requests for wheelchair and companion seating cannot be 
met because entire sections of accessible seating will be lost when 
a platform is removed. See 73 FR 34466, 34493 (June 17, 2008). 
Further, use of temporary platforms allows facilities to limit 
persons who need accessible seating to certain seating areas, and to 
relegate accessible seating to less desirable locations. The use of 
temporary

[[Page 56217]]

platforms has the effect of neutralizing dispersion and other 
seating requirements (e.g., line of sight) for wheelchair spaces and 
companion seats. Cf. Independent Living Resources v. Oregon Arena 
Corp., 1 F. Supp. 2d 1159, 1171 (D. Or. 1998) (holding that while a 
public accommodation may ``infill'' wheelchair spaces with removable 
seats when the wheelchair spaces are not needed to accommodate 
individuals with disabilities, under certain circumstances ``[s]uch 
a practice might well violate the rule that wheelchair spaces must 
be dispersed throughout the arena in a manner that is roughly 
proportionate to the overall distribution of seating''). In 
addition, using temporary platforms to convert unsold wheelchair 
spaces to conventional seating undermines the flexibility facilities 
need to accommodate secondary ticket markets exchanges as required 
by Sec.  35.138(g) of the final rule.
    As the Department explained in the NPRM, however, this provision 
was not designed to prohibit temporary seating that increases 
seating for events (e.g., placing temporary seating on the floor of 
a basketball court for a concert). Consequently, the final rule, at 
Sec.  35.151(g)(3), has been amended to clarify that if an entire 
seating section is on a temporary platform for a particular event, 
then wheelchair spaces and companion seats may be in that seating 
section. However, adding a temporary platform to create wheelchair 
spaces and companion seats that are otherwise dissimilar from nearby 
fixed seating and then simply adding a small number of additional 
seats to the platform would not qualify as an ``entire seating 
section'' on the platform. In addition, Sec.  35.151(g)(3) clarifies 
that facilities may fill in wheelchair spaces with removable seats 
when the wheelchair spaces are not needed by persons who use 
wheelchairs.
    The Department has been responsive to assembly areas' concerns 
about reduced revenues due to unused accessible seating. 
Accordingly, the Department has reduced scoping requirements 
significantly--by almost half in large assembly areas--and 
determined that allowing assembly areas to infill unsold wheelchair 
spaces with readily removable temporary individual seats 
appropriately balances their economic concerns with the rights of 
individuals with disabilities. See section 221.2 of the 2010 
Standards.
    For stadium-style movie theaters, in Sec.  35.151(g)(4) of the 
NPRM the Department proposed requiring placement of wheelchair 
seating spaces and companion seats on a riser or cross-aisle in the 
stadium section of the theater and placement of such seating so that 
it satisfies at least one of the following criteria: (1) It is 
located within the rear 60 percent of the seats provided in the 
auditorium; or (2) it is located within the area of the auditorium 
where the vertical viewing angles are between the 40th to 100th 
percentile of vertical viewing angles for all seats in that theater 
as ranked from the first row (1st percentile) to the back row (100th 
percentile). The vertical viewing angle is the angle between a 
horizontal line perpendicular to the seated viewer's eye to the 
screen and a line from the seated viewer's eye to the top of the 
screen.
    The Department proposed this bright-line rule for two reasons: 
(1) The movie theater industry petitioned for such a rule; and (2) 
the Department has acquired expertise on the design of stadium style 
theaters from litigation against several major movie theater chains. 
See U.S. v. AMC Entertainment, 232 F. Supp. 2d 1092 (C.D. Ca. 2002), 
rev'd in part, 549 F. 3d 760 (9th Cir. 2008); U.S. v. Cinemark USA, 
Inc., 348 F. 3d 569 (6th Cir. 2003), cert. denied, 542 U.S. 937 
(2004). Two industry commenters--at least one of whom otherwise 
supported this rule--requested that the Department explicitly state 
that this rule does not apply retroactively to existing theaters. 
Although this rule on its face applies to new construction and 
alterations, these commenters were concerned that the rule could be 
interpreted to apply retroactively because of the Department's 
statement in the ANPRM that this bright-line rule, although newly-
articulated, does not represent a ``substantive change from the 
existing line-of-sight requirements'' of section 4.33.3 of the 1991 
Standards. See 69 FR 58768, 58776 (Sept. 30, 2004).
    Although the Department intends for Sec.  35.151(g)(4) of this 
rule to apply prospectively to new construction and alterations, 
this rule is not a departure from, and is consistent with, the line-
of-sight requirements in the 1991 Standards. The Department has 
always interpreted the line-of-sight requirements in the 1991 
Standards to require viewing angles provided to patrons who use 
wheelchairs to be comparable to those afforded to other spectators. 
Section 35.151(g)(4) merely represents the application of these 
requirements to stadium-style movie theaters.
    One commenter from a trade association sought clarification 
whether Sec.  35.151(g)(4) applies to stadium-style theaters with 
more than 300 seats, and argued that it should not since dispersion 
requirements apply in those theaters. The Department declines to 
limit this rule to stadium-style theaters with 300 or fewer seats; 
stadium-style theaters of all sizes must comply with this rule. So, 
for example, stadium-style theaters that must vertically disperse 
wheelchair and companion seats must do so within the parameters of 
this rule.
    The NPRM included a provision that required assembly areas with 
more than 5,000 seats to provide at least five wheelchair spaces 
with at least three companion seats for each of those five 
wheelchair spaces. The Department agrees with commenters who 
asserted that group seating is better addressed through ticketing 
policies rather than design and has deleted that provision from this 
section of the final rule.

Section 35.151(h) Medical care facilities

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

Section 35.151(i) Curb ramps

    Section 35.151(e) on curb ramps in the 1991 rule has been 
redesignated as Sec.  35.151(i). In the NPRM, the Department 
proposed making a minor editorial change to this section, deleting 
the phrase ``other sloped areas'' from the two places in which it 
appears in the 1991 title II regulation. In the NPRM, the Department 
stated that the phrase ``other sloped areas'' lacks technical 
precision. The Department received no significant public comments on 
this proposal. Upon further consideration, however, the Department 
has concluded that the regulation should acknowledge that there are 
times when there are transitions from

[[Page 56218]]

sidewalk to road surface that do not technically qualify as ``curb 
ramps'' (sloped surfaces that have a running slope that exceed 5 
percent). Therefore, the Department has decided not to delete the 
phrase ``other sloped areas.''

Section 35.151(j) Residential housing for sale to individual owners

    Although public entities that operate residential housing 
programs are subject to title II of the ADA, and therefore must 
provide accessible residential housing, the 1991 Standards did not 
contain scoping or technical standards that specifically applied to 
residential housing units. As a result, under the Department's title 
II regulation, these agencies had the choice of complying with UFAS, 
which contains specific scoping and technical standards for 
residential housing units, or applying the ADAAG transient lodging 
standards to their housing. Neither UFAS nor the 1991 Standards 
distinguish between residential housing provided for rent and those 
provided for sale to individual owners. Thus, under the 1991 title 
II regulation, public entities that construct residential housing 
units to be sold to individual owners must ensure that some of those 
units are accessible. This requirement is in addition to any 
accessibility requirements imposed on housing programs operated by 
public entities that receive Federal financial assistance from 
Federal agencies such as HUD.
    The 2010 Standards contain scoping and technical standards for 
residential dwelling units. However, section 233.3.2 of the 2010 
Standards specifically defers to the Department and to HUD, the 
standard-setting agency under the ABA, to decide the appropriate 
scoping for those residential dwelling units built by or on behalf 
of public entities with the intent that the finished units will be 
sold to individual owners. These programs include, for example, 
HUD's public housing and HOME programs as well as State-funded 
programs to construct units for sale to individuals. In the NPRM, 
the Department did not make a specific proposal for this scoping. 
Instead, the Department stated that after consultation and 
coordination with HUD, the Department would make a determination in 
the final rule. The Department also sought public comment on this 
issue stating that ``[t]he Department would welcome recommendations 
from individuals with disabilities, public housing authorities, and 
other interested parties that have experience with these programs. 
Please comment on the appropriate scoping for residential dwelling 
units built by or on behalf of public entities with the intent that 
the finished units will be sold to individual owners.'' 73 FR 34466, 
34492 (June 17, 2008).
    All of the public comments received by the Department in 
response to this question were supportive of the Department's 
ensuring that the residential standards apply to housing built on 
behalf of public entities with the intent that the finished units 
would be sold to individual owners. The vast majority of commenters 
recommended that the Department require that projects consisting of 
five or more units, whether or not the units are located on one or 
multiple locations, comply with the 2004 ADAAG requirements for 
scoping of residential units, which require that 5 percent, and no 
fewer than one, of the dwelling units provide mobility features, and 
that 2 percent, and no fewer than one, of the dwelling units provide 
communication features. See 2004 ADAAG Section 233.3. These 
commenters argued that the Department should not defer to HUD 
because HUD has not yet adopted the 2004 ADAAG and there is 
ambiguity on the scope of coverage of pre-built for sale units under 
HUD's current section 504 regulations. In addition, these commenters 
expressed concern that HUD's current regulation, 24 CFR 8.29, 
presumes that a prospective buyer is identified before design and 
construction begins so that disability features can be incorporated 
prior to construction. These commenters stated that State and 
Federally funded homeownership programs typically do not identify 
prospective buyers before construction has commenced. One commenter 
stated that, in its experience, when public entities build 
accessible for-sale units, they often sell these units through a 
lottery system that does not make any effort to match persons who 
need the accessible features with the units that have those 
features. Thus, accessible units are often sold to persons without 
disabilities. This commenter encouraged the Department to make sure 
that accessible for-sale units built or funded by public entities 
are placed in a separate lottery restricted to income-eligible 
persons with disabilities.
    Two commenters recommended that the Department develop rules for 
four types of for-sale projects: single family pre-built (where 
buyer selects the unit after construction), single family post-built 
(where the buyer chooses the model prior to its construction), 
multi-family pre-built, and multi-family post-built. These 
commenters recommended that the Department require pre-built units 
to comply with the 2004 ADAAG 233.1 scoping requirements. For post-
built units, the commenters recommended that the Department require 
all models to have an alternate design with mobility features and an 
alternate design with communications features in compliance with 
2004 ADAAG. Accessible models should be available at no extra cost 
to the buyer. One commenter recommended that, in addition to 
required fully accessible units, all ground floor units should be 
readily convertible for accessibility or for sensory impairments 
technology enhancements.
    The Department believes that consistent with existing 
requirements under title II, housing programs operated by public 
entities that design and construct or alter residential units for 
sale to individual owners should comply with the 2010 Standards, 
including the requirements for residential facilities in sections 
233 and 809. These requirements will ensure that a minimum of 5 
percent of the units, but no fewer than one unit, of the total 
number of residential dwelling units will be designed and 
constructed to be accessible for persons with mobility disabilities. 
At least 2 percent, but no fewer than one unit, of the total number 
of residential dwelling units shall provide communication features.
    The Department recognizes that there are some programs (such as 
the one identified by the commenter), in which units are not 
designed and constructed until an individual buyer is identified. In 
such cases, the public entity is still obligated to comply with the 
2010 Standards. In addition, the public entity must ensure that pre-
identified buyers with mobility disabilities and visual and hearing 
disabilities are afforded the opportunity to buy the accessible 
units. Once the program has identified buyers who need the number of 
accessible units mandated by the 2010 Standards, it may have to make 
reasonable modifications to its policies, practices, and procedures 
in order to provide accessible units to other buyers with 
disabilities who request such units.
    The Department notes that the residential facilities standards 
allow for construction of units with certain features of 
adaptability. Public entities that are concerned that fully 
accessible units are less marketable may choose to build these units 
to include the allowable adaptable features, and then adapt them at 
their own expense for buyers with mobility disabilities who need 
accessible units. For example, features such as grab bars are not 
required but may be added by the public entity if needed by the 
buyer at the time of purchase and cabinets under sinks may be 
designed to be removable to allow access to the required knee space 
for a forward approach.
    The Department agrees with the commenters that covered entities 
may have to make reasonable modifications to their policies, 
practices, and procedures in order to ensure that when they offer 
pre-built accessible residential units for sale, the units are 
offered in a manner that gives access to those units to persons with 
disabilities who need the features of the units and who are 
otherwise eligible for the housing program. This may be 
accomplished, for example, by adopting preferences for accessible 
units for persons who need the features of the units, holding 
separate lotteries for accessible units, or other suitable methods 
that result in the sale of accessible units to persons who need the 
features of such units. In addition, the Department believes that 
units designed and constructed or altered that comply with the 
requirements for residential facilities and are offered for sale to 
individuals must be provided at the same price as units without such 
features.

Section 35.151(k) Detention and correctional facilities

    The 1991 Standards did not contain specific accessibility 
standards applicable to cells in correctional facilities. However, 
correctional and detention facilities operated by or on behalf of 
public entities have always been subject to the nondiscrimination 
and program accessibility requirements of title II of the ADA. The 
2004 ADAAG established specific requirements for the design and 
construction and alterations of cells in correctional facilities for 
the first time.
    Based on complaints received by the Department, investigations, 
and compliance reviews of jails, prisons, and other detention and 
correctional facilities, the Department has determined that many 
detention and

[[Page 56219]]

correctional facilities do not have enough accessible cells, 
toilets, and shower facilities to meet the needs of their inmates 
with mobility disabilities and some do not have any at all. Inmates 
are sometimes housed in medical units or infirmaries separate from 
the general population simply because there are no accessible cells. 
In addition, some inmates have alleged that they are housed at a 
more restrictive classification level simply because no accessible 
housing exists at the appropriate classification level. The 
Department's compliance reviews and investigations have 
substantiated certain of these allegations.
    The Department believes that the insufficient number of 
accessible cells is, in part, due to the fact that most jails and 
prisons were built long before the ADA became law and, since then, 
have undergone few alterations that would trigger the obligation to 
provide accessible features in accordance with UFAS or the 1991 
Standards. In addition, the Department has found that even some new 
correctional facilities lack accessible features. The Department 
believes that the unmet demand for accessible cells is also due to 
the changing demographics of the inmate population. With thousands 
of prisoners serving life sentences without eligibility for parole, 
prisoners are aging, and the prison population of individuals with 
disabilities and elderly individuals is growing. A Bureau of Justice 
Statistics study of State and Federal sentenced inmates (those 
sentenced to more than one year) shows the total estimated count of 
State and Federal prisoners aged 55 and older grew by 36,000 inmates 
from 2000 (44,200) to 2006 (80,200). William J. Sabol et al., 
Prisoners in 2006, Bureau of Justice Statistics Bulletin, Dec. 2007, 
at 23 (app. table 7), available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=908 (last visited July 16, 2008); Allen J. 
Beck et al., Prisoners in 2000, Bureau of Justice Statistics 
Bulletin, Aug. 2001, at 10 (Aug. 2001) (Table 14), available at 
bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=927 (last visited July 
16, 2008). This jump constitutes an increase of 81 percent in 
prisoners aged 55 and older during this period.
    In the NPRM, the Department proposed a new section, Sec.  
35.152, which combined a range of provisions relating to both 
program accessibility and application of the proposed standards to 
detention and correctional facilities. In the final rule, the 
Department is placing those provisions that refer to design, 
construction, and alteration of detention and correction facilities 
in a new paragraph (k) of Sec.  35.151, the section of the rule that 
addresses new construction and alterations for covered entities. 
Those portions of the final rule that address other issues, such as 
placement policies and program accessibility, are placed in the new 
Sec.  35.152.
    In the NPRM, the Department also sought input on how best to 
meet the needs of inmates with mobility disabilities in the design, 
construction, and alteration of detention and correctional 
facilities. The Department received a number of comments in response 
to this question.
    New Construction. The NPRM did not expressly propose that new 
construction of correctional and detention facilities shall comply 
with the proposed standards because the Department assumed it would 
be clear that the requirements of Sec.  35.151 would apply to new 
construction of correctional and detention facilities in the same 
manner that they apply to other facilities constructed by covered 
entities. The Department has decided to create a new section, Sec.  
35.151(k)(1), which clarifies that new construction of jails, 
prisons, and other detention facilities shall comply with the 
requirements of 2010 Standards. Section 35.151(k)(1) also increases 
the scoping for accessible cells from the 2 percent specified in the 
2004 ADAAG to 3 percent.
    Alterations. Although the 2010 Standards contain specifications 
for alterations in existing detention and correctional facilities, 
section 232.2 defers to the Attorney General the decision as to the 
extent these requirements will apply to alterations of cells. The 
NPRM proposed at Sec.  35.152(c) that ``[a]lterations to jails, 
prisons, and other detention and correctional facilities will comply 
with the requirements of Sec.  35.151(b).'' 73 FR 34466, 34507 (June 
17, 2008). The final rule retains that requirement at Sec.  
35.151(k)(2), but increases the scoping for accessible cells from 
the 2 percent specified in the 2004 ADAAG to 3 percent.
    Substitute cells. In the ANPRM, the Department sought public 
comment about the most effective means to ensure that existing 
correctional facilities are made accessible to prisoners with 
disabilities and presented three options: (1) Require all altered 
elements to be accessible, which would maintain the current policy 
that applies to other ADA alteration requirements; (2) permit 
substitute cells to be made accessible within the same facility, 
which would permit correctional authorities to meet their obligation 
by providing the required accessible features in cells within the 
same facility, other than those specific cells in which alterations 
are planned; or (3) permit substitute cells to be made accessible 
within a prison system, which would focus on ensuring that prisoners 
with disabilities are housed in facilities that best meet their 
needs, as alterations within a prison environment often result in 
piecemeal accessibility.
    In Sec.  35.152(c) of the NPRM, the Department proposed language 
based on Option 2, providing that when cells are altered, a covered 
entity may satisfy its obligation to provide the required number of 
cells with mobility features by providing the required mobility 
features in substitute cells (i.e., cells other than those where 
alterations are originally planned), provided that each substitute 
cell is located within the same facility, is integrated with other 
cells to the maximum extent feasible, and has, at a minimum, 
physical access equal to that of the original cells to areas used by 
inmates or detainees for visitation, dining, recreation, educational 
programs, medical services, work programs, religious services, and 
participation in other programs that the facility offers to inmates 
or detainees.
    The Department received few comments on this proposal. The 
majority who chose to comment supported an approach that allowed 
substitute cells to be made accessible within the same facility. In 
their view, such an approach balanced administrators' needs, cost 
considerations, and the needs of inmates with disabilities. One 
commenter noted, however, that with older facilities, required 
modifications may be inordinately costly and technically infeasible. 
A large county jail system supported the proposed approach as the 
most viable option allowing modification or alteration of existing 
cells based on need and providing a flexible approach to provide 
program and mobility accessibility. It noted, as an alternative, 
that permitting substitute cells to be made accessible within a 
prison system would also be a viable option since such an approach 
could create a centralized location for accessibility needs and, 
because that jail system's facilities were in close proximity, it 
would have little impact on families for visitation or on accessible 
programming.
    A large State department of corrections objected to the 
Department's proposal. The commenter stated that some very old 
prison buildings have thick walls of concrete and reinforced steel 
that are difficult, if not impossible to retrofit, and to do so 
would be very expensive. This State system approaches accessibility 
by looking at its system as a whole and providing access to programs 
for inmates with disabilities at selected prisons. This commenter 
explained that not all of its facilities offer the same programs or 
the same levels of medical or mental health services. An inmate, for 
example, who needs education, substance abuse treatment, and sex 
offender counseling may be transferred between facilities in order 
to meet his needs. The inmate population is always in flux and there 
are not always beds or program availability for every inmate at his 
security level. This commenter stated that the Department's proposed 
language would put the State in the position of choosing between 
adding accessible cells and modifying paths of travel to programs 
and services at great expense or not altering old facilities, 
causing them to become in states of disrepair and obsolescent, which 
would be fiscally irresponsible.
    The Department is persuaded by these comments and has modified 
the alterations requirement in Sec.  35.151(k)(2)(iv) in the final 
rule to allow that if it is technically infeasible to provide 
substitute cells in the same facility, cells can be provided 
elsewhere within the corrections system.
    Number of accessible cells. Section 232.2.1 of the 2004 ADAAG 
requires at least 2 percent, but no fewer than one, of the cells in 
newly constructed detention and correctional facilities to have 
accessibility features for individuals with mobility disabilities. 
Section 232.3 provides that, where special holding cells or special 
housing cells are provided, at least one cell serving each purpose 
shall have mobility features. The Department sought input on whether 
these 2004 ADAAG requirements are sufficient to meet the needs of 
inmates with mobility disabilities. A major association representing 
county jails throughout the country stated that the 2004 ADAAG 2 
percent requirement for accessible cells is sufficient to meet the 
needs of county jails.

[[Page 56220]]

Similarly, a large county sheriff's department advised that the 2 
percent requirement far exceeds the need at its detention facility, 
where the average age of the population is 32. This commenter 
stressed that the regulations need to address the differences 
between a local detention facility with low average lengths of stay 
as opposed to a State prison housing inmates for lengthy periods. 
This commenter asserted that more stringent requirements will raise 
construction costs by requiring modifications that are not needed. 
If more stringent requirements are adopted, the commenter suggested 
that they apply only to State and Federal prisons that house 
prisoners sentenced to long terms. The Department notes that a 
prisoner with a mobility disability needs a cell with mobility 
features regardless of the length of incarceration. However, the 
length of incarceration is most relevant in addressing the needs of 
an aging population.
    The overwhelming majority of commenters responded that the 2 
percent ADAAG requirement is inadequate to meet the needs of the 
incarcerated. Many commenters suggested that the requirement be 
expanded to apply to each area, type, use, and class of cells in a 
facility. They asserted that if a facility has separate areas for 
specific programs, such as a dog training program or a substance 
abuse unit, each of these areas should also have 2 percent 
accessible cells but not less than one. These same commenters 
suggested that 5-7 percent of cells should be accessible to meet the 
needs of both an aging population and the larger number of inmates 
with mobility disabilities. One organization recommended that the 
requirement be increased to 5 percent overall, and that at least 2 
percent of each type and use of cell be accessible. Another 
commenter recommended that 10 percent of cells be accessible. An 
organization with extensive corrections experience noted that the 
integration mandate requires a sufficient number and distribution of 
accessible cells so as to provide distribution of locations relevant 
to programs to ensure that persons with disabilities have access to 
the programs.
    Through its investigations and compliance reviews, the 
Department has found that in most detention and correctional 
facilities, a 2 percent accessible cell requirement is inadequate to 
meet the needs of the inmate population with disabilities. That 
finding is supported by the majority of the commenters that 
recommended a 5-7 percent requirement. Indeed, the Department itself 
requires more than 2 percent of the cells to be accessible at its 
own corrections facilities. The Federal Bureau of Prisons is subject 
to the requirements of the 2004 ADAAG through the General Services 
Administration's adoption of the 2004 ADAAG as the enforceable 
accessibility standard for Federal facilities under the 
Architectural Barriers Act of 1968. 70 FR 67786, 67846-47 (Nov. 8, 
2005). However, in order to meet the needs of inmates with mobility 
disabilities, the Bureau of Prisons has elected to increase that 
percentage and require that 3 percent of inmate housing at its 
facilities be accessible. Bureau of Prisons, Design Construction 
Branch, Design Guidelines, Attachment A: Accessibility Guidelines 
for Design, Construction, and Alteration of Federal Bureau of 
Prisons (Oct. 31, 2006).
    The Department believes that a 3 percent accessible requirement 
is reasonable. Moreover, it does not believe it should impose a 
higher percentage on detention and corrections facilities than it 
utilizes for its own facilities. Thus, the Department has adopted a 
3 percent requirement in Sec.  35.151(k) for both new construction 
and alterations. The Department notes that the 3 percent requirement 
is a minimum. As corrections systems plan for new facilities or 
alterations, the Department urges planners to include numbers of 
inmates with disabilities in their population projections in order 
to take the necessary steps to provide a sufficient number of 
accessible cells to meet inmate needs.
    Dispersion of Cells. The NPRM did not contain express language 
addressing dispersion of cells in a facility. However, Advisory 
232.2 of the 2004 ADAAG recommends that ``[a]ccessible cells or 
rooms should be dispersed among different levels of security, 
housing categories, and holding classifications (e.g., male/female 
and adult/juvenile) to facilitate access.'' In explaining the basis 
for recommending, but not requiring, this type of dispersal, the 
Access Board stated that ``[m]any detention and correctional 
facilities are designed so that certain areas (e.g., `shift' areas) 
can be adapted to serve as different types of housing according to 
need'' and that ``[p]lacement of accessible cells or rooms in shift 
areas may allow additional flexibility in meeting requirements for 
dispersion of accessible cells or rooms.''
    The Department notes that inmates are typically housed in 
separate areas of detention and correctional facilities based on a 
number of factors, including their classification level. In many 
instances, detention and correctional facilities have housed inmates 
in inaccessible cells, even though accessible cells were available 
elsewhere in the facility, because there were no cells in the areas 
where they needed to be housed, such as in administrative or 
disciplinary segregation, the women's section of the facility, or in 
a particular security classification area.
    The Department received a number of comments stating that 
dispersal of accessible cells together with an adequate number of 
accessible cells is necessary to prevent inmates with disabilities 
from placement in improper security classification and to ensure 
integration. Commenters recommended modification of the scoping 
requirements to require a percentage of accessible cells in each 
program, classification, use or service area. The Department is 
persuaded by these comments. Accordingly, Sec.  35.151(k)(1) and 
(k)(2) of the final rule require accessible cells in each 
classification area.
    Medical facilities. The NPRM also did not propose language 
addressing the application of the 2004 ADAAG to medical and long-
term care facilities in correctional and detention facilities. The 
provisions of the 2004 ADAAG contain requirements for licensed 
medical and long-term care facilities, but not those that are 
unlicensed. A disability advocacy group and a number of other 
commenters recommended that the Department expand the application of 
section 232.4 to apply to all such facilities in detention and 
correctional facilities, regardless of licensure. They recommended 
that whenever a correctional facility has a program that is 
addressed specifically in the 2004 ADAAG, such as a long-term care 
facility, the 2004 ADAAG scoping and design features should apply 
for those elements. Similarly, a building code organization noted 
that its percentage requirements for accessible units is based on 
what occurs in the space, not on the building type.
    The Department is persuaded by these comments and has added 
Sec.  35.151(k)(3), which states that ``[w]ith respect to medical 
and long-term care facilities in jails, prisons, and other detention 
and correctional facilities, public entities shall apply the 2010 
Standards technical and scoping requirements for those facilities 
irrespective of whether those facilities are licensed.''

Section 35.152 Detention and correctional facilities--program 
requirements

    As noted in the discussion of Sec.  35.151(k), the Department 
has determined that inmates with mobility and other disabilities in 
detention and correctional facilities do not have equal access to 
prison services. The Department's concerns are based not only on 
complaints it has received, but the Department's substantial 
experience in investigations and compliance reviews of jails, 
prisons, and other detention and correctional facilities. Based on 
that review, the Department has found that many detention and 
correctional facilities have too few or no accessible cells, 
toilets, and shower facilities to meet the needs of their inmates 
with mobility disabilities. These findings, coupled with statistics 
regarding the current percentage of inmates with mobility 
disabilities and the changing demographics of the inmate population 
reflecting thousands of prisoners serving life sentences and 
increasingly large numbers of aging inmates who are not eligible for 
parole, led the Department to conclude that a new regulation was 
necessary to address these concerns.
    In the NPRM, the Department proposed a new section, Sec.  
35.152, which combined a range of provisions relating to both 
program accessibility and application of the proposed standards to 
detention and correctional facilities. As mentioned above, in the 
final rule, the Department is placing those provisions that refer to 
design, construction, and alteration of detention and correction 
facilities in new paragraph (k) in Sec.  35.151 dealing with new 
construction and alterations for covered entities. Those portions of 
the final rule that address other program requirements remain in 
Sec.  35.152.
    The Department received many comments in response to the program 
accessibility requirements in proposed Sec.  35.152. These comments 
are addressed below.
    Facilities operated through contractual, licensing, or other 
arrangements with other public entities or private entities. The 
Department is aware that some public

[[Page 56221]]

entities are confused about the applicability of the title II 
requirements to correctional facilities built or run by other public 
entities or private entities. It has consistently been the 
Department's position that title II requirements apply to 
correctional facilities used by State or local government entities, 
irrespective of whether the public entity contracts with another 
public or private entity to build or run the correctional facility. 
The power to incarcerate citizens rests with the State or local 
government, not a private entity. As the Department stated in the 
preamble to the original title II regulation, ``[a]ll governmental 
activities of public entities are covered, even if they are carried 
out by contractors.'' 28 CFR part 35, app. A at 558 (2009). If a 
prison is occupied by State prisoners and is inaccessible, the State 
is responsible under title II of the ADA. The same is true for a 
county or city jail. In essence, the private builder or contractor 
that operates the correctional facility does so at the direction of 
the government entity. Moreover, even if the State enters into a 
contractual, licensing, or other arrangement for correctional 
services with a public entity that has its own title II obligations, 
the State is still responsible for ensuring that the other public 
entity complies with title II in providing these services.
    Also, through its experience in investigations and compliance 
reviews, the Department has noted that public entities contract for 
a number of services to be run by private or other public entities, 
for example, medical and mental health services, food services, 
laundry, prison industries, vocational programs, and drug treatment 
and substance abuse programs, all of which must be operated in 
accordance with title II requirements.
    Proposed Sec.  35.152(a) in the NPRM was designed to make it 
clear that title II applies to all State and local detention and 
correctional facilities, regardless of whether the detention or 
correctional facility is directly operated by the public entity or 
operated by a private entity through a contractual, licensing, or 
other arrangement. Commenters specifically supported the language of 
this section. One commenter cited Department of Justice statistics 
stating that of the approximately 1.6 million inmates in State and 
Federal facilities in December 2006, approximately 114,000 of these 
inmates were held in private prison facilities. See William J. Sabol 
et al., Prisoners in 2006, Bureau of Justice Statistics Bulletin, 
Dec. 2007, at 1, 4, available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=908. Some commenters wanted the text 
``through contracts or other arrangements'' changed to read 
``through contracts or any other arrangements'' to make the intent 
clear. However, a large number of commenters recommended that the 
text of the rule make explicit that it applies to correctional 
facilities operated by private contractors. Many commenters also 
suggested that the text make clear that the rule applies to adult 
facilities, juvenile justice facilities, and community correctional 
facilities. In the final rule, the Department is adopting these 
latter two suggestions in order to make the section's intent 
explicit.
    Section 35.152(a) of the final rule states specifically that the 
requirements of the section apply to public entities responsible for 
the operation or management of correctional facilities, ``either 
directly or through contractual, licensing, or other arrangements 
with public or private entities, in whole or in part, including 
private correctional facilities.'' Additionally, the section 
explicitly provides that it applies to adult and juvenile justice 
detention and correctional facilities and community correctional 
facilities.
    Discrimination prohibited. In the NPRM, Sec.  35.152(b)(1) 
proposed language stating that public entities are prohibited from 
excluding qualified detainees and inmates from participation in, or 
denying, benefits, services, programs, or activities because a 
facility is inaccessible to persons with disabilities ``unless the 
public entity can demonstrate that the required actions would result 
in a fundamental alteration or undue burden.'' 73 FR 34446, 34507 
(June 17, 2008). One large State department of corrections objected 
to the entire section applicable to detention and correctional 
facilities, stating that it sets a higher standard for correctional 
and detention facilities because it does not provide a defense for 
undue administrative burden. The Department has not retained the 
proposed NPRM language referring to the defenses of fundamental 
alteration or undue burden because the Department believes that 
these exceptions are covered by the general language of 
35.150(a)(3), which states that a public entity is not required to 
take ``any action that it can demonstrate would result in a 
fundamental alteration in the nature of a service, program, or 
activity, or in undue financial and administrative burdens.'' The 
Department has revised the language of Sec.  35.152(b)(1) 
accordingly.
    Integration of inmates and detainees with disabilities. In the 
NPRM, the Department proposed language in Sec.  35.152(b)(2) 
specifically applying the ADA's general integration mandate to 
detention and correctional facilities. The proposed language would 
have required public entities to ensure that individuals with 
disabilities are housed in the most integrated setting appropriate 
to the needs of the individual. It further stated that unless the 
public entity can demonstrate that it is appropriate to make an 
exception for a specific individual, a public entity:
    (1) Should not place inmates or detainees with disabilities in 
locations that exceed their security classification because there 
are no accessible cells or beds in the appropriate classification;
    (2) should not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical 
care or treatment;
    (3) should not place inmates or detainees with disabilities in 
facilities that do not offer the same programs as the facilities 
where they would ordinarily be housed; and
    (4) should not place inmates or detainees with disabilities in 
facilities farther away from their families in order to provide 
accessible cells or beds, thus diminishing their opportunity for 
visitation based on their disability. 73 FR 34466, 34507 (June 17, 
2008).
    In the NPRM, the Department recognized that there are a wide 
range of considerations that affect decisions to house inmates or 
detainees and that in specific cases there may be compelling reasons 
why a placement that does not meet the general requirements of Sec.  
35.152(b)(2) may, nevertheless, comply with the ADA. However, the 
Department noted that it is essential that the planning process 
initially assume that inmates or detainees with disabilities will be 
assigned within the system under the same criteria that would be 
applied to inmates who do not have disabilities. Exceptions may be 
made on a case-by-case basis if the specific situation warrants 
different treatment. For example, if an inmate is deaf and 
communicates only using sign language, a prison may consider whether 
it is more appropriate to give priority to housing the prisoner in a 
facility close to his family that houses no other deaf inmates, or 
if it would be preferable to house the prisoner in a setting where 
there are sign language interpreters and other sign language users 
with whom he can communicate.
    In general, commenters strongly supported the NPRM's 
clarification that the title II integration mandate applies to State 
and local corrections agencies and the facilities in which they 
house inmates. Commenters pointed out that inmates with disabilities 
continue to be segregated based on their disabilities and also 
excluded from participation in programs. An organization actively 
involved in addressing the needs of prisoners cited a number of 
recent lawsuits in which prisoners allege such discrimination.
    The majority of commenters objected to the language in proposed 
Sec.  35.152(b)(2) that creates an exception to the integration 
mandate when the ``public entity can demonstrate that it is 
appropriate to make an exception for a specific individual.'' 73 FR 
34466, 34507 (June 17, 2008). The vast majority of commenters 
asserted that, given the practice of many public entities to 
segregate and cluster inmates with disabilities, the exception will 
be used to justify the status quo. The commenters acknowledged that 
the intent of the section is to ensure that an individual with a 
disability who can be better served in a less integrated setting can 
legally be placed in that setting. They were concerned, however, 
that the proposed language would allow certain objectionable 
practices to continue, e.g., automatically placing persons with 
disabilities in administrative segregation. An advocacy organization 
with extensive experience working with inmates recommended that the 
inmate have ``input'' in the placement decision.
    Others commented that the exception does not provide sufficient 
guidance on when a government entity may make an exception, citing 
the need for objective standards. Some commenters posited that a 
prison administration may want to house a deaf inmate at a facility 
designated and equipped for deaf inmates that is several hundred 
miles from the inmate's home. Although under the exception language, 
such a placement may be appropriate, these commenters argued that 
this outcome appears to contradict the regulation's intent to 
eliminate or reduce the

[[Page 56222]]

segregation of inmates with disabilities and prevent them from being 
placed far from their families. The Department notes that in some 
jurisdictions, the likelihood of such outcomes is diminished because 
corrections facilities with different programs and levels of 
accessibility are clustered in close proximity to one another, so 
that being far from family is not an issue. The Department also 
takes note of advancements in technology that will ease the 
visitation dilemma, such as family visitation through the use of 
videoconferencing.
    Only one commenter, a large State department of corrections, 
objected to the integration requirement. This commenter stated it 
houses all maximum security inmates in maximum security facilities. 
Inmates with lower security levels may or may not be housed in lower 
security facilities depending on a number of factors, such as 
availability of a bed, staffing, program availability, medical and 
mental health needs, and enemy separation. The commenter also 
objected to the proposal to prohibit housing inmates with 
disabilities in medical areas unless they are receiving medical 
care. This commenter stated that such housing may be necessary for 
several days, for example, at a stopover facility for an inmate with 
a disability who is being transferred from one facility to another. 
Also, this commenter stated that inmates with disabilities in 
disciplinary status may be housed in the infirmary because not every 
facility has accessible cells in disciplinary housing. Similarly the 
commenter objected to the prohibition on placing inmates in 
facilities without the same programs as facilities where they 
normally would be housed. Finally, the commenter objected to the 
prohibition on placing an inmate at a facility distant from where 
the inmate would normally be housed. The commenter stressed that in 
its system, there are few facilities near most inmates' homes. The 
commenter noted that most inmates are housed at facilities far from 
their homes, a fact shared by all inmates, not just inmates with 
disabilities. Another commenter noted that in some jurisdictions, 
inmates who need assistance in activities of daily living cannot 
obtain that assistance in the general population, but only in 
medical facilities where they must be housed.
    The Department has considered the concerns raised by the 
commenters with respect to this section and recognizes that 
corrections systems may move inmates routinely and for a variety of 
reasons, such as crowding, safety, security, classification change, 
need for specialized programs, or to provide medical care. Sometimes 
these moves are within the same facility or prison system. On other 
occasions, inmates may be transferred to facilities in other cities, 
counties, and States. Given the nature of the prison environment, 
inmates have little say in their placement and administrators must 
have flexibility to meet the needs of the inmates and the system. 
The Department has revised the language of the exception contained 
in renumbered Sec.  35.152(b)(2) to better accommodate corrections 
administrators' need for flexibility in making placement decisions 
based on legitimate, specific reasons. Moreover, the Department 
believes that temporary, short-term moves that are necessary for 
security or administrative purposes (e.g., placing an inmate with a 
disability in a medical area at a stopover facility during a 
transfer from one facility to another) do not violate the 
requirements of Sec.  35.152(b)(2).
    The Department notes that Sec.  35.150(a)(3) states that a 
public entity is not required to take ``any action that it can 
demonstrate would result in a fundamental alteration in the nature 
of a service, program, or activity or in undue financial and 
administrative burdens.'' Thus, corrections systems would not have 
to comply with the requirements of Sec.  35.152(b)(1) in any 
specific circumstance where these defenses are met.
    Several commenters recommended that the word ``should'' be 
changed to ``shall'' in the subparts to Sec.  35.152(b)(2). The 
Department agrees that because the rule contains a specific 
exception and because the integration requirement is subject to the 
defenses provided in paragraph (a) of that section, it is more 
appropriate to use the word ``shall'' and the Department accordingly 
is making that change in the final rule.
    Program requirements. In a unanimous decision, the Supreme 
Court, in Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 
206 (1998), stated explicitly that the ADA covers the operations of 
State prisons; accordingly, title II's program accessibility 
requirements apply to State and local correctional and detention 
facilities. In the NPRM, in addressing the accessibility of existing 
correctional and detention facilities, the Department considered the 
challenges of applying the title II program access requirement for 
existing facilities under Sec.  31.150(a) in light of the realities 
of many inaccessible correctional facilities and strained budgets.
    Correctional and detention facilities commonly provide a variety 
of different programs for education, training, counseling, or other 
purposes related to rehabilitation. Some examples of programs 
generally available to inmates include programs to obtain GEDs, 
computer training, job skill training and on-the-job training, 
religious instruction and guidance, alcohol and substance abuse 
groups, anger management, work assignments, work release, halfway 
houses, and other programs. Historically, individuals with 
disabilities have been excluded from such programs because they are 
not located in accessible locations, or inmates with disabilities 
have been segregated in units without equivalent programs. In light 
of the Supreme Court's decision in Yeskey and the requirements of 
title II, however, it is critical that public entities provide these 
opportunities to inmates with disabilities. In proposed Sec.  
35.152, the Department sought to clarify that title II required 
equal access for inmates with disabilities to participate in 
programs offered to inmates without disabilities.
    The Department wishes to emphasize that detention and 
correctional facilities are unique facilities under title II. 
Inmates cannot leave the facilities and must have their needs met by 
the corrections system, including needs relating to a disability. If 
the detention and correctional facilities fail to accommodate 
prisoners with disabilities, these individuals have little recourse, 
particularly when the need is great (e.g., an accessible toilet; 
adequate catheters; or a shower chair). It is essential that 
corrections systems fulfill their nondiscrimination and program 
access obligations by adequately addressing the needs of prisoners 
with disabilities, which include, but are not limited to, proper 
medication and medical treatment, accessible toilet and shower 
facilities, devices such as a bed transfer or a shower chair, and 
assistance with hygiene methods for prisoners with physical 
disabilities.
    In the NPRM, the Department also sought input on whether it 
should establish a program accessibility requirement that public 
entities modify additional cells at a detention or correctional 
facility to incorporate the accessibility features needed by 
specific inmates with mobility disabilities when the number of cells 
required by sections 232.2 and 232.3 of the 2004 ADAAG are 
inadequate to meet the needs of their inmate population.
    Commenters supported a program accessibility requirement, 
viewing it as a flexible and practical means of allowing facilities 
to meet the needs of inmates in a cost effective and expedient 
manner. One organization supported a requirement to modify 
additional cells when the existing number of accessible cells is 
inadequate. It cited the example of a detainee who was held in a 
hospital because the local jail had no accessible cells. Similarly, 
a State agency recommended that the number of accessible cells 
should be sufficient to accommodate the population in need. One 
group of commenters voiced concern about accessibility being 
provided in a timely manner and recommended that the rule specify 
that the program accessibility requirement applies while waiting for 
the accessibility modifications. A group with experience addressing 
inmate needs recommended the inmate's input should be required to 
prevent inappropriate segregation or placement in an inaccessible or 
inappropriate area.
    The Department is persuaded by these comments. Accordingly, 
Sec.  35.152(b)(3) requires public entities to ``implement 
reasonable policies, including physical modifications to additional 
cells in accordance with the 2010 Standards, so as to ensure that 
each inmate with a disability is housed in a cell with the 
accessible elements necessary to afford the inmate access to safe, 
appropriate housing.''
    Communication. Several large disability advocacy organizations 
commented on the 2004 ADAAG section 232.2.2 requirement that at 
least 2 percent of the general holding cells and housing cells must 
be equipped with audible emergency alarm systems. Permanently 
installed telephones within these cells must have volume control. 
Commenters said that the communication features in the 2004 ADAAG do 
not address the most common barriers that deaf and hard-of-hearing 
inmates face. They asserted that few cells have telephones and the 
requirements to make them accessible is limited to volume control, 
and that

[[Page 56223]]

emergency alarm systems are only a small part of the amplified 
information that inmates need. One large association commented that 
it receives many inmate complaints that announcements are made over 
loudspeakers or public address systems, and that inmates who do not 
hear announcements for inmate count or other instructions face 
disciplinary action for failure to comply. They asserted that 
inmates who miss announcements miss meals, exercise, showers, and 
recreation. They argued that systems that deliver audible 
announcements, signals, and emergency alarms must be made accessible 
and that TTYs must be made available. Commenters also recommended 
that correctional facilities should provide access to advanced forms 
of telecommunications. Additional commenters noted that few persons 
now use TTYs, preferring instead to communicate by email, texting, 
and videophones.
    The Department agrees with the commenters that correctional 
facilities and jails must ensure that inmates who are deaf or hard 
of hearing actually receive the same information provided to other 
inmates. The Department believes, however, that the reasonable 
modifications, program access, and effective communications 
requirements of title II are sufficient to address the needs of 
individual deaf and hard of hearing inmates, and as a result, 
declines to add specific requirements for communications features in 
cells for deaf and hard of hearing inmates at this time. The 
Department notes that as part of its ongoing enforcement of the 
reasonable modifications, program access, and effective 
communications requirements of title II, the Department has required 
correctional facilities and jails to provide communication features 
in cells serving deaf and hard of hearing inmates.

Subpart E--Communications

Section 35.160 Communications.

    Section 35.160 of the 1991 title II regulation requires a public 
entity to take appropriate steps to ensure that communications with 
applicants, participants, and members of the public with 
disabilities are as effective as communications with others. 28 CFR 
35.160(a). In addition, a public entity must ``furnish appropriate 
auxiliary aids and services where necessary to afford an individual 
with a disability an equal opportunity to participate in, and enjoy 
the benefits of, a service, program, or activity conducted by a 
public entity.'' 28 CFR 35.160(b)(1). Moreover, the public entity 
must give ``primary consideration to the requests of the individual 
with disabilities'' in determining what type of auxiliary aid and 
service is necessary. 28 CFR 35.160(b)(2).
    Since promulgation of the 1991 title II regulation, the 
Department has investigated hundreds of complaints alleging failures 
by public entities to provide effective communication, and many of 
these investigations resulted in settlement agreements and consent 
decrees. From these investigations, the Department has concluded 
that public entities sometimes misunderstand the scope of their 
obligations under the statute and the regulation. Section 35.160 in 
the final rule codifies the Department's longstanding policies in 
this area and includes provisions that reflect technological 
advances in the area of auxiliary aids and services.
    In the NPRM, the Department proposed adding ``companion'' to the 
scope of coverage under Sec.  35.160 to codify the Department's 
longstanding position that a public entity's obligation to ensure 
effective communication extends not just to applicants, 
participants, and members of the public with disabilities, but to 
companions as well, if any of them are individuals with 
disabilities. The NPRM defined companion as a person who is a family 
member, friend, or associate of a program participant, who, along 
with the program participant, is ``an appropriate person with whom 
the public entity should communicate.'' 73 FR 34466, 34507 (June 17, 
2008).
    Many commenters supported inclusion of ``companions'' in the 
rule, and urged even more specific language about public entities' 
obligations. Some commenters asked the Department to clarify that a 
companion with a disability may be entitled to effective 
communication from a public entity even though the applicants, 
participants, or members of the general public seeking access to, or 
participating in, the public entity's services, programs, or 
activities are not individuals with disabilities. Others requested 
that the Department explain the circumstances under which auxiliary 
aids and services should be provided to companions. Still others 
requested explicit clarification that where the individual seeking 
access to or participating in the public entity's program, services, 
or activities requires auxiliary aids and services, but the 
companion does not, the public entity may not seek out, or limit its 
communications to, the companion instead of communicating directly 
with the individual with a disability when it would be appropriate 
to do so.
    Some in the medical community objected to the inclusion of any 
regulatory language regarding companions, asserting that such 
language is overbroad, seeks services for individuals whose presence 
is not required by the public entity, is not necessary for the 
delivery of the services or participation in the program, and places 
additional burdens on the medical community. These commenters asked 
that the Department limit the public entity's obligation to 
communicate effectively with a companion to situations where such 
communications are necessary to serve the interests of the person 
who is receiving the public entity's services.
    After consideration of the many comments on this issue, the 
Department believes that explicit inclusion of ``companions'' in the 
final rule is appropriate to ensure that public entities understand 
the scope of their effective communication obligations. There are 
many situations in which the interests of program participants 
without disabilities require that their companions with disabilities 
be provided effective communication. In addition, the program 
participant need not be physically present to trigger the public 
entity's obligations to a companion. The controlling principle is 
that auxiliary aids and services must be provided if the companion 
is an appropriate person with whom the public entity should or would 
communicate.
    Examples of such situations include back-to-school nights or 
parent-teacher conferences at a public school. If the faculty writes 
on the board or otherwise displays information in a visual context 
during a back-to-school night, this information must be communicated 
effectively to parents or guardians who are blind or have low 
vision. At a parent-teacher conference, deaf parents or guardians 
must be provided with appropriate auxiliary aids and services to 
communicate effectively with the teacher and administrators. It 
makes no difference that the child who attends the school does not 
have a disability. Likewise, when a deaf spouse attempts to 
communicate with public social service agencies about the services 
necessary for the hearing spouse, appropriate auxiliary aids and 
services to the deaf spouse must be provided by the public entity to 
ensure effective communication. Parents or guardians, including 
foster parents, who are individuals with disabilities, may need to 
interact with child services agencies on behalf of their children; 
in such a circumstance, the child services agencies would need to 
provide appropriate auxiliary aids and services to those parents or 
guardians.
    Effective communication with companions is particularly critical 
in health care settings where miscommunication may lead to 
misdiagnosis and improper or delayed medical treatment. The 
Department has encountered confusion and reluctance by medical care 
providers regarding the scope of their obligation with respect to 
such companions. Effective communication with a companion is 
necessary in a variety of circumstances. For example, a companion 
may be legally authorized to make health care decisions on behalf of 
the patient or may need to help the patient with information or 
instructions given by hospital personnel. A companion may be the 
patient's next-of-kin or health care surrogate with whom hospital 
personnel must communicate about the patient's medical condition. A 
companion could be designated by the patient to communicate with 
hospital personnel about the patient's symptoms, needs, condition, 
or medical history. Or the companion could be a family member with 
whom hospital personnel normally would communicate.
    Accordingly, Sec.  35.160(a)(1) in the final rule now reads, 
``[a] public entity shall take appropriate steps to ensure that 
communications with applicants, participants, members of the public, 
and companions with disabilities are as effective as communications 
with others.'' Section 35.160(a)(2) further defines ``companion'' as 
``a family member, friend, or associate of an individual seeking 
access to a service, program, or activity of a public entity, who, 
along with the individual, is an appropriate person with whom the 
public entity should communicate.'' Section 35.160(b)(1) clarifies 
that the obligation to furnish auxiliary aids and services extends 
to companions who are individuals with disabilities, whether or not 
the individual accompanied also is an

[[Page 56224]]

individual with a disability. The provision now states that ``[a] 
public entity shall furnish appropriate auxiliary aids and services 
where necessary to afford individuals with disabilities, including 
applicants, participants, companions, and members of the public, an 
equal opportunity to participate in, and enjoy the benefits of, a 
service, program, or activity of a public entity.''
    These provisions make clear that if the companion is someone 
with whom the public entity normally would or should communicate, 
then the public entity must provide appropriate auxiliary aids and 
services to that companion to ensure effective communication with 
the companion. This common-sense rule provides the guidance 
necessary to enable public entities to properly implement the 
nondiscrimination requirements of the ADA.
    As set out in the final rule, Sec.  35.160(b)(2) states, in 
pertinent part, that ``[t]he type of auxiliary aid or service 
necessary to ensure effective communication will vary in accordance 
with the method of communication used by the individual, the nature, 
length, and complexity of the communication involved, and the 
context in which the communication is taking place. In determining 
what types of auxiliary aids and services are necessary, a public 
entity shall give primary consideration to the requests of 
individuals with disabilities.''
    The second sentence of Sec.  35.160(b)(2) of the final rule 
restores the ``primary consideration'' obligation set out at Sec.  
35.160(b)(2) in the 1991 title II regulation. This provision was 
inadvertently omitted from the NPRM, and the Department agrees with 
the many commenters on this issue that this provision should be 
retained. As noted in the preamble to the 1991 title II regulation, 
and reaffirmed here: ``The public entity shall honor the choice [of 
the individual with a disability] unless it can demonstrate that 
another effective means of communication exists or that use of the 
means chosen would not be required under Sec.  35.164. Deference to 
the request of the individual with a disability is desirable because 
of the range of disabilities, the variety of auxiliary aids and 
services, and different circumstances requiring effective 
communication.'' 28 CFR part 35, app. A at 580 (2009).
    The first sentence in Sec.  35.160(b)(2) codifies the axiom that 
the type of auxiliary aid or service necessary to ensure effective 
communication will vary with the situation, and provides factors for 
consideration in making the determination, including the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which 
the communication is taking place. Inclusion of this language under 
title II is consistent with longstanding policy in this area. See, 
e.g., The Americans with Disabilities Act Title II Technical 
Assistance Manual Covering State and Local Government Programs and 
Services, section II-7.1000, available at www.ada.gov/taman2.html 
(``The type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the length and 
complexity of the communication involved. * * * Sign language or 
oral interpreters, for example, may be required when the information 
being communicated in a transaction with a deaf individual is 
complex, or is exchanged for a lengthy period of time. Factors to be 
considered in determining whether an interpreter is required include 
the context in which the communication is taking place, the number 
of people involved, and the importance of the communication.''); see 
also 28 CFR part 35, app. A at 580 (2009). As explained in the NPRM, 
an individual who is deaf or hard of hearing may need a qualified 
interpreter to communicate with municipal hospital personnel about 
diagnoses, procedures, tests, treatment options, surgery, or 
prescribed medication (e.g., dosage, side effects, drug 
interactions, etc.), or to explain follow-up treatments, therapies, 
test results, or recovery. In comparison, in a simpler, shorter 
interaction, the method to achieve effective communication can be 
more basic. An individual who is seeking local tax forms may only 
need an exchange of written notes to achieve effective 
communication.
    Section 35.160(c)(1) has been added to the final rule to make 
clear that a public entity shall not require an individual with a 
disability to bring another individual to interpret for him or her. 
The Department receives many complaints from individuals who are 
deaf or hard of hearing alleging that public entities expect them to 
provide their own sign language interpreters. Proposed Sec.  
35.160(c)(1) was intended to clarify that when a public entity is 
interacting with a person with a disability, it is the public 
entity's responsibility to provide an interpreter to ensure 
effective communication. It is not appropriate to require the person 
with a disability to bring another individual to provide such 
services.
    Section 35.160(c)(2) of the NPRM proposed codifying the 
Department's position that there are certain limited instances when 
a public entity may rely on an accompanying individual to interpret 
or facilitate communication: (1) In an emergency involving a threat 
to the public safety or welfare; or (2) if the individual with a 
disability specifically requests it, the accompanying individual 
agrees to provide the assistance, and reliance on that individual 
for this assistance is appropriate under the circumstances.
    Many commenters supported this provision, but sought more 
specific language to address what they see as a particularly 
entrenched problem. Some commenters requested that the Department 
explicitly require the public entity first to notify the individual 
with a disability that the individual has a right to request and 
receive appropriate auxiliary aids and services without charge from 
the public entity before using that person's accompanying individual 
as a communication facilitator. Advocates stated that an individual 
who is unaware of his or her rights may decide to use a third party 
simply because he or she believes that is the only way to 
communicate with the public entity.
    The Department has determined that inclusion of specific 
language requiring notification is unnecessary. Section 35.160(b)(1) 
already states that is the responsibility of the public entity to 
provide auxiliary aids and services. Moreover, Sec.  35.130(f) 
already prohibits the public entity from imposing a surcharge on a 
particular individual with a disability or on any group of 
individuals with disabilities to cover the costs of auxiliary aids. 
However, the Department strongly advises public entities that they 
should first inform the individual with a disability that the public 
entity can and will provide auxiliary aids and services, and that 
there would be no cost for such aids or services.
    Many commenters requested that the Department make clear that 
the public entity cannot request, rely upon, or coerce an adult 
accompanying an individual with a disability to provide effective 
communication for that individual with a disability--that only a 
voluntary offer is acceptable. The Department states unequivocally 
that consent of, and for, the adult accompanying the individual with 
a disability to facilitate communication must be provided freely and 
voluntarily both by the individual with a disability and the 
accompanying third party--absent an emergency involving an imminent 
threat to the safety or welfare of an individual or the public where 
there is no interpreter available. The public entity may not coerce 
or attempt to persuade another adult to provide effective 
communication for the individual with a disability. Some commenters 
expressed concern that the regulation could be read by public 
entities, including medical providers, to prevent parents, 
guardians, or caregivers from providing effective communication for 
children or that a child, regardless of age, would have to 
specifically request that his or her caregiver act as interpreter. 
The Department does not intend Sec.  35.160(c)(2) to prohibit 
parents, guardians, or caregivers from providing effective 
communication for children where so doing would be appropriate. 
Rather, the rule prohibits public entities, including medical 
providers, from requiring, relying on, or forcing adults 
accompanying individuals with disabilities, including parents, 
guardians, or caregivers, to facilitate communication.
    Several commenters asked that the Department make absolutely 
clear that children are not to be used to provide effective 
communication for family members and friends, and that it is the 
public entity's responsibility to provide effective communication, 
stating that often interpreters are needed in settings where it 
would not be appropriate for children to be interpreting, such as 
those involving medical issues, domestic violence, or other 
situations involving the exchange of confidential or adult-related 
material. Commenters observed that children are often hesitant to 
turn down requests to provide communication services, and that such 
requests put them in a very difficult position vis-a-vis family 
members and friends. The Department agrees. It is the Department's 
position that a public entity shall not rely on a minor child to 
facilitate communication with a family member, friend, or other 
individual, except in an emergency involving imminent threat to the 
safety or welfare of an individual or the

[[Page 56225]]

public where there is no interpreter available. Accordingly, the 
Department has revised the rule to state: ``A public entity shall 
not rely on a minor child to interpret or facilitate communication, 
except in an emergency involving imminent threat to the safety or 
welfare of an individual or the public where there is no interpreter 
available.'' Sec.  35.160(c)(3). Sections 35.160(c)(2) and (3) have 
no application in circumstances where an interpreter would not 
otherwise be required in order to provide effective communication 
(e.g., in simple transactions such as purchasing movie tickets at a 
theater). The Department stresses that privacy and confidentiality 
must be maintained but notes that covered entities, such as 
hospitals, that are subject to the Health Insurance Portability and 
Accountability Act of 1996 (HIPAA), Public Law 104-191, Privacy 
Rules are permitted to disclose to a patient's relative, close 
friend, or any other person identified by the patient (such as an 
interpreter) relevant patient information if the patient agrees to 
such disclosures. See 45 CFR parts 160 and 164. The agreement need 
not be in writing. Covered entities should consult the HIPAA Privacy 
Rules regarding other ways disclosures might be able to be made to 
such persons.
    With regard to emergency situations, the NPRM proposed 
permitting reliance on an individual accompanying an individual with 
a disability to interpret or facilitate communication in an 
emergency involving a threat to the public safety or welfare. 
Commenters requested that the Department make clear that often a 
public entity can obtain appropriate auxiliary aids and services in 
advance of an emergency by making necessary advance arrangements, 
particularly in anticipated emergencies such as predicted dangerous 
weather or certain medical situations such as childbirth. These 
commenters did not want public entities to be relieved of their 
responsibilities to provide effective communication in emergency 
situations, noting that the obligation to provide effective 
communication may be more critical in such situations. Several 
commenters requested a separate rule that requires public entities 
to provide timely and effective communication in the event of an 
emergency, noting that the need for effective communication 
escalates in an emergency.
    Commenters also expressed concern that public entities, 
particularly law enforcement authorities and medical personnel, 
would apply the ``emergency situation'' provision in inappropriate 
circumstances and would rely on accompanying individuals without 
making any effort to seek appropriate auxiliary aids and services. 
Other commenters asked that the Department narrow this provision so 
that it would not be available to entities that are responsible for 
emergency preparedness and response. Some commenters noted that 
certain exigent circumstances, such as those that exist during and 
perhaps immediately after, a major hurricane, temporarily may excuse 
public entities of their responsibilities to provide effective 
communication. However, they asked that the Department clarify that 
these obligations are ongoing and that, as soon as such situations 
begin to abate or stabilize, the public entity must provide 
effective communication.
    The Department recognizes that the need for effective 
communication is critical in emergency situations. After due 
consideration of all of these concerns raised by commenters, the 
Department has revised Sec.  35.160(c) to narrow the exception 
permitting reliance on individuals accompanying the individual with 
a disability during an emergency to make it clear that it only 
applies to emergencies involving an ``imminent threat to the safety 
or welfare of an individual or the public.'' See Sec.  35.160(c)(2)-
(3). Arguably, all visits to an emergency room or situations to 
which emergency workers respond are by definition emergencies. 
Likewise, an argument can be made that most situations that law 
enforcement personnel respond to involve, in one way or another, a 
threat to the safety or welfare of an individual or the public. The 
imminent threat exception in Sec.  35.160(c)(2)-(3) is not intended 
to apply to the typical and foreseeable emergency situations that 
are part of the normal operations of these institutions. As such, a 
public entity may rely on an accompanying individual to interpret or 
facilitate communication under the Sec.  35.160(c)(2)-(3) imminent 
threat exception only where in truly exigent circumstances, i.e., 
where any delay in providing immediate services to the individual 
could have life-altering or life-ending consequences.
    Many commenters urged the Department to stress the obligation of 
State and local courts to provide effective communication. The 
Department has received many complaints that State and local courts 
often do not provide needed qualified sign language interpreters to 
witnesses, litigants, jurors, potential jurors, and companions and 
associates of persons participating in the legal process. The 
Department cautions public entities that without appropriate 
auxiliary aids and services, such individuals are denied an 
opportunity to participate fully in the judicial process, and denied 
benefits of the judicial system that are available to others.
    Another common complaint about access to State and local court 
systems is the failure to provide effective communication in 
deferral programs that are intended as an alternative to 
incarceration, or for other court-ordered treatment programs. These 
programs must provide effective communication, and courts referring 
individuals with disabilities to such programs should only refer 
individuals with disabilities to programs or treatment centers that 
provide effective communication. No person with a disability should 
be denied access to the benefits conferred through participation in 
a court-ordered referral program on the ground that the program 
purports to be unable to provide effective communication.
    The general nondiscrimination provision in Sec.  35.130(a) 
provides that no individual with a disability shall, on the basis of 
disability, be excluded from participation in or be denied the 
benefits of the services, programs, or activities of a public 
entity. The Department consistently interprets this provision and 
Sec.  35.160 to require effective communication in courts, jails, 
prisons, and with law enforcement officers. Persons with 
disabilities who are participating in the judicial process as 
witnesses, jurors, prospective jurors, parties before the court, or 
companions of persons with business in the court, should be provided 
auxiliary aids and services as needed for effective communication. 
The Department has developed a variety of technical assistance and 
guidance documents on the requirements for title II entities to 
provide effective communication; those materials are available on 
the Department Web site at: http://www.ada.gov.
    Many advocacy groups urged the Department to add language in the 
final rule that would require public entities to provide accessible 
material in a manner that is timely, accurate, and private. The 
Department has included language in Sec.  35.160(b)(2) stating that 
``[i]n order to be effective, auxiliary aids and services must be 
provided in accessible formats, in a timely manner, and in such a 
way so as to protect the privacy and independence of the individual 
with a disability.''
    Because the appropriateness of particular auxiliary aids and 
services may vary as a situation changes, the Department strongly 
encourages public entities to do a communication assessment of the 
individual with a disability when the need for auxiliary aids and 
services is first identified, and to re-assess communication 
effectiveness regularly throughout the communication. For example, a 
deaf individual may go to an emergency department of a public 
community health center with what is at first believed to be a minor 
medical emergency, such as a sore knee, and the individual with a 
disability and the public community health center both believe that 
exchanging written notes will be effective. However, during that 
individual's visit, it is determined that the individual is, in 
fact, suffering from an anterior cruciate ligament tear and must 
have surgery to repair the torn ligament. As the situation develops 
and the diagnosis and recommended course of action evolve into 
surgery, an interpreter most likely will be necessary. A public 
entity has a continuing obligation to assess the auxiliary aids and 
services it is providing, and should consult with individuals with 
disabilities on a continuing basis to assess what measures are 
required to ensure effective communication. Public entities are 
further advised to keep individuals with disabilities apprised of 
the status of the expected arrival of an interpreter or the delivery 
of other requested or anticipated auxiliary aids and services.
    Video remote interpreting (VRI) services. In Sec.  35.160(d) of 
the NPRM, the Department proposed the inclusion of four performance 
standards for VRI (which the NPRM termed video interpreting services 
(VIS)), for effective communication: (1) High-quality, clear, real-
time, full-motion video and audio over a dedicated high-speed 
Internet connection; (2) a clear, sufficiently large, and sharply 
delineated picture of the participating individual's head, arms, 
hands, and fingers, regardless of his body position; (3) clear 
transmission of voices; and (4)

[[Page 56226]]

persons who are trained to set up and operate the VRI quickly. 
Commenters generally approved of those performance standards, but 
recommended that some additional standards be included in the final 
rule. Some State agencies and advocates for persons with 
disabilities requested that the Department add more detail in the 
description of the first standard, including modifying the term 
``dedicated high-speed Internet connection'' to read ``dedicated 
high-speed, wide-bandwidth video connection.'' These commenters 
argued that this change was necessary to ensure a high-quality video 
image that will not produce lags, choppy images, or irregular pauses 
in communication. The Department agrees with those comments and has 
amended the provision in the final rule accordingly.
    For persons who are deaf with limited vision, commenters 
requested that the Department include an explicit requirement that 
interpreters wear high-contrast clothing with no patterns that might 
distract from their hands as they are interpreting, so that a person 
with limited vision can see the signs made by the interpreter. While 
the Department reiterates the importance of such practices in the 
delivery of effective VRI, as well as in-person interpreting, the 
Department declines to adopt such performance standards as part of 
this rule. In general, professional interpreters already follow such 
practices--the Code of Professional Conduct for interpreters 
developed by the Registry of Interpreters for the Deaf, Inc. and the 
National Association of the Deaf incorporates attire considerations 
into their standards of professionalism and conduct. (This code is 
available at http://www.vid.org/userfiles/file/pdfs/codeofethics.pdf 
(Last visited July 18, 2010). Moreover, as a result of this code, 
many VRI agencies have adopted detailed dress standards that 
interpreters hired by the agency must follow. In addition, 
commenters urged that a clear image of the face and eyes of the 
interpreter and others be explicitly required. Because the face 
includes the eyes, the Department has amended Sec.  35.160(d)(2) of 
the final rule to include a requirement that the interpreter's face 
be displayed.
    In response to comments seeking more training for users and non-
technicians responsible for VRI in title II facilities, the 
Department is extending the requirement in Sec.  35.160(d)(4) to 
require training for ``users of the technology'' so that staff who 
would have reason to use the equipment in an emergency room, State 
or local court, or elsewhere are properly trained. Providing for 
such training will enhance the success of VRI as means of providing 
effective communication.
    Captioning at sporting venues. In the NPRM at Sec.  35.160(e), 
the Department proposed that sports stadiums that have a capacity of 
25,000 or more shall provide captioning for safety and emergency 
information on scoreboards and video monitors. In addition, the 
Department posed four questions about captioning of information, 
especially safety and emergency information announcements, provided 
over public address (PA) systems. The Department received many 
extremely detailed and divergent responses to each of the four 
questions and the proposed regulatory text. Because comments 
submitted on the Department's title II and title III proposals were 
intertwined, because of the similarity of issues involved for title 
II entities and title III entities, and in recognition of the fact 
that many large sports stadiums are covered by both title II and 
title III as joint operations of State or local governments and one 
or more public accommodations, the Department presents here a single 
consolidated review and summary of the issues raised in comments.
    The Department asked whether requiring captioning of safety and 
emergency information made over the public address system in 
stadiums seating fewer than 25,000 would create an undue burden for 
smaller entities, whether it would be feasible for small stadiums, 
or whether a larger threshold, such as sports stadiums with a 
capacity of 50,000 or more, would be appropriate.
    There was a consensus among the commenters, including disability 
advocates as well as venue owners and stadium designers and 
operators, that using the stadium size or seating capacity as the 
exclusive deciding factor for any obligation to provide captioning 
for safety and emergency information broadcast over the PA system is 
not preferred. Most disability advocacy organizations and 
individuals with disabilities complained that using size or seating 
capacity as a threshold for captioning safety and emergency 
information would undermine the ``undue burden'' defense found in 
both titles II and III. Many commenters provided examples of 
facilities like professional hockey arenas that seat less than 
25,000 fans but which, commenters argued, should be able to provide 
real-time captioning. Other commenters suggested that some high 
school or college stadiums, for example, may hold 25,000 fans or 
more and yet lack the resources to provide real-time captioning. 
Many commenters noted that real-time captioning would require 
trained stenographers and that most high school and college sports 
facilities rely upon volunteers to operate scoreboards and PA 
systems, and they would not be qualified stenographers, especially 
in case of an emergency. One national association noted that the 
typical stenographer expense for a professional football game in 
Washington, DC is about $550 per game. Similarly, one trade 
association representing venues estimated that the cost for a 
professional stenographer at a sporting event runs between $500 and 
$1,000 per game or event, the cost of which, they argued, would be 
unduly burdensome in many cases. Some commenters posited that 
schools that do not sell tickets to athletic events would find it 
difficult to meet such expenses, in contrast to major college 
athletic programs and professional sports teams, which would be less 
likely to prevail using an ``undue burden'' defense.
    Some venue owners and operators and other covered entities 
argued that stadium size should not be the key consideration when 
requiring scoreboard captioning. Instead, these entities suggested 
that equipment already installed in the stadium, including necessary 
electrical equipment and backup power supply, should be the 
determining factor for whether captioning is mandated. Many 
commenters argued that the requirement to provide captioning should 
only apply to stadiums with scoreboards that meet the National Fire 
Protection Association (NFPA) National Fire Alarm Code (NFPA 72). 
Commenters reported that NFPA 72 requires at least two independent 
and reliable power supplies for emergency information systems, 
including one source that is a generator or battery sufficient to 
run the system in the event the primary power fails. Alternatively, 
some stadium designers and title II entities commented that the 
requirement should apply when the facility has at least one elevator 
providing firefighter emergency operation, along with approval of 
authorities with responsibility for fire safety. Other commenters 
argued for flexibility in the requirements for providing captioning 
and that any requirement should only apply to stadiums constructed 
after the effective date of the regulation.
    In the NPRM, the Department also asked whether the rule should 
address the specific means of captioning equipment, whether it 
should be provided through any effective means (scoreboards, line 
boards, handheld devices, or other means), or whether some means, 
such as handheld devices, should be eliminated as options. This 
question elicited many comments from advocates for persons with 
disabilities as well as from covered entities. Advocacy 
organizations and individuals with experience using handheld devices 
argue that such devices do not provide effective communication. 
These commenters noted that information is often delayed in the 
transmission to such devices, making them hard to use when following 
action on the playing field or in the event of an emergency when the 
crowd is already reacting to aural information provided over the PA 
system well before it is received on the handheld device.
    Several venue owners and operators and others commented that 
handheld technology offers advantages of flexibility and portability 
so that it may be used successfully regardless of where in the 
facility the user is located, even when not in the line of sight of 
a scoreboard or other captioning system. Still other commenters 
urged the Department not to regulate in such a way as to limit 
innovation and use of such technology now and in the future. Cost 
considerations were included in some comments from some stadium 
designers and venue owners and operators, who reported that the cost 
of providing handheld systems is far less than the cost of real-time 
captioning on scoreboards, especially in facilities that do not 
currently have the capacity to provide real-time captions on 
existing equipment. Others noted that handheld technology is not 
covered by fire and safety model codes, including the NFPA, and thus 
would be more easily adapted into existing facilities if captioning 
were required by the Department.
    The Department also asked about providing open captioning of all 
public address announcements, and not limiting captioning to safety 
and emergency information. A variety of advocates and persons with 
disabilities argued that all

[[Page 56227]]

information broadcast over a PA system should be captioned in real 
time at all facilities in order to provide effective communication 
and that a requirement only to provide emergency and safety 
information would not be sufficient. A few organizations for persons 
with disabilities commented that installation of new systems should 
not be required, but that all systems within existing facilities 
that are capable of providing captioning must be utilized to the 
maximum extent possible to provide captioning of as much information 
as possible. Several organizations representing persons with 
disabilities commented that all facilities must include in safety 
planning the requirement to caption all aurally-provided information 
for patrons with communication disabilities. Some advocates 
suggested that demand for captions will only increase as the number 
of deaf and hard of hearing persons grows with the aging of the 
general population and with increasing numbers of veterans returning 
from war with disabilities. Multiple comments noted that the 
captioning would benefit others as well as those with communication 
disabilities.
    By contrast, venue owners and operators and others commented 
that the action on the sports field is self-explanatory and does not 
require captioning and they objected to an explicit requirement to 
provide real-time captioning for all information broadcast on the PA 
system at a sporting event. Other commenters objected to requiring 
captioning even for emergency and safety information over the 
scoreboard rather than through some other means. By contrast, venue 
operators, State government agencies, and some model code groups, 
including NFPA, commented that emergency and safety information must 
be provided in an accessible format and that public safety is a 
paramount concern. Other commenters argued that the best method to 
deliver safety and emergency information would be television 
monitors showing local TV broadcasts with captions already mandated 
by the FCC. Some commenters posited that the most reliable 
information about a major emergency would be provided on the 
television news broadcasts. Several commenters argued that 
television monitors may be located throughout the facility, 
improving line of sight for patrons, some of whom might not be able 
to see the scoreboard from their seats or elsewhere in the facility. 
Some stadium designers, venue operators, and model code groups 
pointed out that video monitors are not regulated by the NFPA or 
other agencies, so that such monitors could be more easily provided. 
Video monitors may receive transmissions from within the facility 
and could provide real-time captions if there is the necessary 
software and equipment to feed the captioning signal to a closed 
video network within the facility. Several comments suggested that 
using monitors would be preferable to requiring captions on the 
scoreboard if the regulation mandates real-time captioning. Some 
venue owners and operators argued that retrofitting existing 
stadiums with new systems could easily cost hundreds of thousands of 
dollars per scoreboard or system. Some stadium designers and others 
argued that captioning should only be required in stadiums built 
after the effective date of the regulation. For stadiums with 
existing systems that allow for real-time captioning, one commenter 
posited that dedicating the system exclusively to real-time 
captioning would lead to an annual loss of between $2 and $3 million 
per stadium in revenue from advertising currently running in that 
space.
    After carefully considering the wide range of public comments on 
this issue, the Department has concluded that the final rule will 
not provide additional requirements for effective communication or 
emergency information provided at sports stadiums at this time. The 
1991 title II and title III regulations and statutory requirements 
are not in any way affected by this decision. The decision to 
postpone rulemaking on this complex issue is based on a number of 
factors, including the multiple layers of existing regulation by 
various agencies and levels of government, and the wide array of 
information, requests, and recommendations related to developing 
technology offered by the public. In addition, there is a huge 
variety of covered entities, information and communication systems, 
and differing characteristics among sports stadiums. The Department 
has concluded that further consideration and review would be prudent 
before it issues specific regulatory requirements.

Section 35.161 Telecommunications.

    The Department proposed to retitle this section 
``Telecommunications'' to reflect situations in which the public 
entity must provide an effective means to communicate by telephone 
for individuals with disabilities. First, the NPRM proposed 
redesignating Sec.  35.161 as Sec.  35.161(a) and replacing the term 
``Telecommunications devices for the deaf (TDD)'' with ``Text 
telephones (TTY).'' Public comment was universally supportive of 
this change in nomenclature to TTY.
    In the NPRM, at Sec.  35.161(b), the Department addressed 
automated-attendant systems that handle telephone calls 
electronically. Often individuals with disabilities, including 
persons who are deaf or hard of hearing, are unable to use such 
automated systems. Some systems are not compatible with TTYs or the 
telecommunications relay service. Automated systems can and often do 
disconnect calls from TTYs or relay calls, making it impossible for 
persons using a TTY or relay system to do business with title II 
entities in the same manner as others. The Department proposed 
language that would require a telecommunications service to permit 
persons using relay or TTYs or other assistive technology to use the 
automated-attendant system provided by the public entity. The FCC 
raised this concern with the Department after the 1991 title II 
regulation went into effect, and the Department acted upon that 
request in the NPRM. Comments from disability advocates and persons 
with disabilities consistently requested the provision be amended to 
cover ``voice mail, messaging, auto-attendant, and interactive voice 
response systems.'' The Department recognizes that those are 
important features of widely used telecommunications technology that 
should be as accessible to persons who are deaf or hard of hearing 
as they are to others, and has amended the section in the final rule 
to include the additional features.
    Many commenters, including advocates and persons with 
disabilities, as well as State agencies and national organizations, 
asked that all automated systems have an option for the caller to 
bypass the automated system and speak to a live person who could 
communicate using relay services. The Department understands that 
automated telecommunications systems typically do not offer the 
opportunity to avoid or bypass the automated system and speak to a 
live person. The Department believes that at this time it is 
inappropriate to add a requirement that all such systems provide an 
override capacity that permits a TTY or relay caller to speak with a 
live clerk on a telecommunications relay system. However, if a 
system already provides an option to speak to a person, that system 
must accept TTY and relay calls and must not disconnect or refuse to 
accept such calls.
    Other comments from advocacy organizations and individuals urged 
the Department to require specifications for the operation of such 
systems that would involve issuing technical requirements for 
encoding and storage of automated text, as well as controls for 
speed, pause, rewind, and repeat, and prompts without any background 
noise. The same comments urged that these requirements should be 
consistent with a pending advisory committee report to the Access 
Board, submitted in April 2008. See Telecommunications and 
Electronic Information Technology Advisory Committee, Report to the 
Access Board Refreshed Accessibility Standards and Guidelines in 
Telecommunications and Electronic and Information Technology (Apr. 
2008) available at http://www.access-board.gov/sec508/refresh/report/. The Department is declining at this time to preempt ongoing 
consideration of these issues by the Board. Instead, the Department 
will monitor activity by the Board. The Department is convinced that 
the general requirement to make such automated systems usable by 
persons with disabilities is appropriate at this time and title II 
entities should evaluate their automated systems in light of 
concerns about providing systems that offer effective communication 
to persons with disabilities.
    Finally, the Department has adopted in Sec.  35.161(c) of the 
final rule the requirement that all such systems must not disconnect 
or refuse to take calls from all forms of FCC-approved 
telecommunications relay systems, including Internet-based relay 
systems. (Internet-based relay systems refer to the mechanism by 
which the message is relayed). They do not require a public entity 
to have specialized computer equipment. Commenters from some State 
agencies, many advocacy organizations, and individuals strongly 
urged the Department to mandate such action because of the high 
proportion of TTY calls and relay service calls that are not 
completed because the title II entity's phone system or employees do 
not take the calls. This presents a serious obstacle for persons

[[Page 56228]]

doing business with State and local government and denies persons 
with disabilities access to use the telephone for business that is 
typically handled over the phone for others.
    In addition, commenters requested that the Department include 
``real-time'' before any mention of ``computer-aided'' technology to 
highlight the value of simultaneous translation of any 
communication. The Department has added ``real-time'' before 
``computer-aided transcription services'' in the definition of 
``auxiliary aids in Sec.  35.104 and before ``communication'' in 
Sec.  35.161(b).

Subpart F--Compliance Procedures

Section 35.171 Acceptance of complaints.

    In the NPRM, the Department proposed changing the current 
language in Sec.  35.171(a)(2)(i) regarding misdirected complaints 
to make it clear that if an agency receives a complaint for which it 
lacks jurisdiction either under section 504 or as a designated 
agency under the ADA, the agency may refer the complaint to the 
appropriate agency with title II or section 504 jurisdiction or to 
the Department of Justice. The language of the 1991 title II 
regulation only requires the agency to refer such a complaint to the 
Department, which in turn refers the complaint to the appropriate 
designated agency. The proposed revisions to Sec.  35.171 made it 
clear that an agency can refer a misdirected complaint either 
directly to the appropriate agency or to the Department. This 
amendment was intended to protect against the unnecessary 
backlogging of complaints and to prevent undue delay in an agency 
taking action on a complaint.
    Several commenters supported this amendment as a more efficient 
means of directing title II complaints to the appropriate enforcing 
agency. One commenter requested that the Department emphasize the 
need for timeliness in referring a complaint. The Department does 
not believe it is appropriate to adopt a specific time frame but 
will continue to encourage designated agencies to make timely 
referrals. The final rule retains, with minor modifications, the 
language in proposed Sec.  35.171(a)(2)(i). The Department has also 
amended Sec.  35.171(a)(2)(ii) to be consistent with the changes in 
the rule at Sec.  35.190(e), as discussed below.

Section 35.172 Investigations and compliance reviews.

    In the NPRM, the Department proposed a number of changes to 
language in Sec.  35.172 relating to the resolution of complaints. 
Subtitle A of title II of the ADA defines the remedies, procedures, 
and rights provided for qualified individuals with disabilities who 
are discriminated against on the basis of disability in the 
services, programs, or activities of State and local governments. 42 
U.S.C. 12131-12134. Subpart F of the current regulation establishes 
administrative procedures for the enforcement of title II of the 
ADA. 28 CFR 35.170-35.178. Subpart G identifies eight ``designated 
agencies,'' including the Department, that have responsibility for 
investigating complaints under title II. See 28 CFR 35.190(b).
    The Department's 1991 title II regulation is based on the 
enforcement procedures established in regulations implementing 
section 504. Thus, the Department's 1991 title II regulation 
provides that the designated agency ``shall investigate each 
complete complaint'' alleging a violation of title II and shall 
``attempt informal resolution'' of such complaint. 28 CFR 35.172(a). 
The full range of remedies (including compensatory damages) that are 
available to the Department when it resolves a complaint or resolves 
issues raised in a compliance review are available to designated 
agencies when they are engaged in informal complaint resolution or 
resolution of issues raised in a compliance review under title II.
    In the years since the 1991 title II regulation went into 
effect, the Department has received many more complaints alleging 
violations of title II than its resources permit it to resolve. The 
Department has reviewed each complaint that the Department has 
received and directed its resources to resolving the most critical 
matters. In the NPRM, the Department proposed deleting the word 
``each'' as it appears before ``complaint'' in Sec.  35.172(a) of 
the 1991 title II regulation as a means of clarifying that 
designated agencies may exercise discretion in selecting title II 
complaints for resolution.
    Many commenters opposed the removal of the term ``each,'' 
requesting that all title II complaints be investigated. The 
commenters explained that complaints against title II entities 
implicate the fundamental right of access to government facilities 
and programs, making an administrative enforcement mechanism 
critical. Rather than aligning enforcement discretion of title II 
complaints with the discretion under the enforcement procedures of 
title III, the commenters favored obtaining additional resources to 
address more complaints. The commenters highlighted the advantage 
afforded by Federal involvement in complaint investigations in 
securing favorable voluntary resolutions. When Federal involvement 
results in settlement agreements, commenters believed those 
agreements are more persuasive to other public entities than private 
settlements. Private litigation as a viable alternative was rejected 
by the commenters because of the financial limitations of many 
complainants, and because in some scenarios legal barriers foreclose 
private litigation as an option.
    Several of those opposing this amendment argued that designated 
agencies are required to investigate each complaint under section 
504, and a departure for title II complaints would be an 
inconsistency. The Department believes that Sec.  35.171(a) of the 
final rule is consistent with the obligation to evaluate all 
complaints. However, there is no statutory requirement that every 
title II complaint receive a full investigation. Section 203 of the 
ADA, 42 U.S.C. 12133, adopts the ``remedies, procedures, and rights 
set forth in section 505 of the Rehabilitation Act of 1973'' (29 
U.S.C. 794a). Section 505 of the Rehabilitation Act, in turn, 
incorporates the remedies available under title VI of the Civil 
Rights Act of 1964 into section 504. Under these statutes, agencies 
may engage in conscientious enforcement without fully investigating 
each citizen complaint. An agency's decision to conduct a full 
investigation requires a complicated balancing of a number of 
factors that are particularly within its expertise. Thus, the agency 
must not only assess whether a violation may have occurred, but also 
whether agency resources are best spent on this complaint or 
another, whether the agency is likely to succeed if it acts, and 
whether the particular enforcement action requested best fits the 
agency's overall policies. Availability of resources will always be 
a factor, and the Department believes discretion to maximize these 
limited resources will result in the most effective enforcement 
program. If agencies are bound to investigate each complaint fully, 
regardless of merit, such a requirement could have a deleterious 
effect on their overall enforcement efforts. The Department 
continues to expect that each designated agency will review the 
complaints the agency receives to determine whether further 
investigation is appropriate.
    The Department also proposed revising Sec.  35.172 to add a new 
paragraph (b) that provided explicit authority for compliance 
reviews consistent with the Department's longstanding position that 
such authority exists. The proposed section stated, ``[t]he 
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.'' Several 
commenters supported this amendment, identifying title III 
compliance reviews as having been a successful means for the 
Department and designated agencies to improve accessibility. The 
Department has retained this section. However, the Department has 
modified the language of the section to make the authority to 
conduct compliance reviews consistent with that available under 
section 504 and title VI. See, e.g., 28 CFR 42.107(a). The new 
provision reads as follows: ``(b) The designated agency may conduct 
compliance reviews of public entities in order to ascertain whether 
there has been a failure to comply with the nondiscrimination 
requirements of this part.'' The Department has also added a 
provision to Sec.  35.172(c)(2) clarifying the Department's 
longstanding view that agencies may obtain compensatory damages on 
behalf of complainants as the result of a finding of discrimination 
pursuant to a compliance review or in informal resolution of a 
complaint.
    Finally, in the NPRM, the Department proposed revising the 
requirements for letters of findings for clarification and to 
reflect current practice. Section 35.172(a) of the 1991 title II 
regulation required designated agencies to issue a letter of 
findings at the conclusion of an investigation if the complaint was 
not resolved informally, and to attempt to negotiate a voluntary 
compliance agreement if a violation was found. The Department's 
proposed changes to the 1991 title II regulation moved the 
discussion of letters of findings to a new paragraph (c) in the 
NPRM, and clarified that letters of findings are only required when 
a violation is found.

[[Page 56229]]

    One commenter opposed the proposal to eliminate the obligation 
of the Department and designated agencies to issue letters of 
finding at the conclusion of every investigation. The commenter 
argued that it is beneficial for public entities, as well as 
complainants, for the Department to provide a reasonable explanation 
of both compliance and noncompliance findings.
    The Department has considered this comment but continues to 
believe that this change will promote the overall effectiveness of 
its enforcement program. The final rule retains the proposed 
language.

Subpart G--Designated Agencies

Section 35.190 Designated agencies.

    Subpart G of the 1991 title II regulation designates specific 
Federal agencies to investigate certain title II complaints. 
Paragraph 35.190(b) specifies these agency designations. Paragraphs 
35.190(c) and (d), respectively, grant the Department discretion to 
designate further oversight responsibilities for matters not 
specifically assigned or where there are apparent conflicts of 
jurisdiction. The NPRM proposed adding a new Sec.  35.190(e) further 
refining procedures for complaints filed with the Department of 
Justice. Proposed Sec.  35.190(e) provides that when the Department 
receives a complaint alleging a violation of title II that is 
directed to the Attorney General but may fall within the 
jurisdiction of a designated agency or another Federal agency with 
jurisdiction under section 504, the Department may exercise its 
discretion to retain the complaint for investigation under this 
part. The Department would, of course, consult with the designated 
agency when the Department plans to retain a complaint. In 
appropriate circumstances, the Department and the designated agency 
may conduct a joint investigation.
    Several commenters supported this amendment as a more efficient 
means of processing title II complaints. The commenters supported 
the Department using its discretion to conduct timely investigations 
of such complaints. The language of the proposed Sec.  35.190(e) 
remains unchanged in the final rule.

Other Issues

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

    In the NPRM, the Department requested comment on various cost 
and benefit issues related to eight requirements in the Department's 
Initial Regulatory Impact Analysis (Initial RIA), available at 
ada.gov/NPRM2008/ria.htm), that were projected to have incremental 
costs exceeding monetized benefits by more than $100 million when 
using the 1991 Standards as the comparative baseline, i.e., side 
reach, water closet clearances in single-user toilet rooms with in-
swinging doors, stairs, elevators, location of accessible routes to 
stages, accessible attorney areas and witness stands, assistive 
listening systems, and accessible teeing grounds, putting greens, 
and weather shelters at golf courses. 73 FR 34466, 34469 (June 17, 
2008). The Department noted that pursuant to the ADA, the Department 
does not have statutory authority to modify the 2004 ADAAG and is 
required instead to issue regulations implementing the ADA that are 
consistent with the Board's guidelines. In that regard, the 
Department also requested comment about whether any of these eight 
elements in the 2010 Standards should be returned to the Access 
Board for further consideration, in particular as applied to 
alterations. Many of the comments received by the Department in 
response to these questions addressed both titles II and III. As a 
result, the Department's discussion of these comments and its 
response are collectively presented for both titles.
    Side reach. The 1991 Standards at section 4.2.6 establish a 
maximum side-reach height of 54 inches. The 2010 Standards at 
section 308.3 reduce that maximum height to 48 inches. The 2010 
Standards also add exceptions for certain elements to the scoping 
requirement for operable parts.
    The vast majority of comments the Department received were in 
support of the lower side-reach maximum of 48 inches in the 2010 
Standards. Most of these comments, but not all, were received from 
individuals of short stature, relatives of individuals of short 
stature, or organizations representing the interests of persons with 
disabilities, including individuals of short stature. Comments from 
individuals with disabilities and disability advocacy groups stated 
that the 48-inch side reach would permit independence in performing 
many activities of daily living for individuals with disabilities, 
including individuals of short stature, persons who use wheelchairs, 
and persons who have limited upper body strength. In this regard, 
one commenter who is a business owner pointed out that as a person 
of short stature there were many occasions when he was unable to 
exit a public restroom independently because he could not reach the 
door handle. The commenter said that often elevator control buttons 
are out of his reach and, if he is alone, he often must wait for 
someone else to enter the elevator so that he can ask that person to 
press a floor button for him. Another commenter, who is also a 
person of short stature, said that he has on several occasions 
pulled into a gas station only to find that he was unable to reach 
the credit card reader on the gas pump. Unlike other customers who 
can reach the card reader, swipe their credit or debit cards, pump 
their gas and leave the station, he must use another method to pay 
for his gas. Another comment from a person of short stature pointed 
out that as more businesses take steps to reduce labor costs--a 
trend expected to continue--staffed booths are being replaced with 
automatic machines for the sale, for example, of parking tickets and 
other products. He observed that the ``ability to access and operate 
these machines becomes ever more critical to function in society,'' 
and, on that basis, urged the Department to adopt the 48-inch side-
reach requirement. Another individual commented that persons of 
short stature should not have to carry with them adaptive tools in 
order to access building or facility elements that are out of their 
reach, any more than persons in wheelchairs should have to carry 
ramps with them in order to gain access to facilities.
    Many of the commenters who supported the revised side-reach 
requirement pointed out that lowering the side-reach requirement to 
48 inches would avoid a problem sometimes encountered in the built 
environment when an element was mounted for a parallel approach at 
54 inches only to find afterwards that a parallel approach was not 
possible. Some commenters also suggested that lowering the maximum 
unobstructed side reach to 48 inches would reduce confusion among 
design professionals by making the unobstructed forward and side-
reach maximums the same (the unobstructed forward reach in both the 
1991 and 2010 Standards is 48 inches maximum). These commenters also 
pointed out that the ICC/ANSI A117.1 Standard, which is a private 
sector model accessibility standard, has included a 48-inch maximum 
high side-reach requirement since 1998. Many jurisdictions have 
already incorporated this requirement into their building codes, 
which these commenters believed would reduce the cost of compliance 
with the 2010 Standards. Because numerous jurisdictions have already 
adopted the 48-inch side-reach requirement, the Department's failure 
to adopt the 48-inch side-reach requirement in the 2010 Standards, 
in the view of many commenters, would result in a significant 
reduction in accessibility, and would frustrate efforts that have 
been made to harmonize private sector model construction and 
accessibility codes with Federal accessibility requirements. Given 
these concerns, they overwhelmingly opposed the idea of returning 
the revised side-reach requirement to the Access Board for further 
consideration.
    The Department also received comments in support of the 48-inch 
side-reach requirement from an association of professional 
commercial property managers and operators and from State 
governmental entities. The association of property managers pointed 
out that the revised side-reach requirement provided a reasonable 
approach to ``regulating elevator controls and all other operable 
parts'' in existing facilities in light of the manner in which the 
safe harbor, barrier removal, and alterations obligations will 
operate in the 2010 Standards. One governmental entity, while fully 
supporting the 48-inch side-reach requirement, encouraged the 
Department to adopt an exception to the lower reach range for 
existing facilities similar to the exception permitted in the ICC/
ANSI A117.1 Standard. In response to this latter concern, the 
Department notes that under the safe harbor, existing facilities 
that are in compliance with the 1991 Standards, which require a 54-
inch side-reach maximum, would not be required to comply with the 
lower side-reach requirement, unless there is an alteration. See 
Sec.  35.150(b)(2).
    A number of commenters expressed either concern with, or 
opposition to, the 48-inch side-reach requirement and suggested that 
it be returned to the Access Board for further consideration. These 
commenters included trade and business associations, associations of 
retail stores, associations of restaurant owners, retail and 
convenience store chains,

[[Page 56230]]

and a model code organization. Several businesses expressed the view 
that the lower side-reach requirement would discourage the use of 
their products and equipment by most of the general public. In 
particular, concerns were expressed by a national association of pay 
phone service providers regarding the possibility that pay 
telephones mounted at the lower height would not be used as 
frequently by the public to place calls, which would result in an 
economic burden on the pay phone industry. The commenter described 
the lower height required for side reach as creating a new 
``barrier'' to pay phone use, which would reduce revenues collected 
from pay phones and, consequently, further discourage the 
installation of new pay telephones. In addition, the commenter 
expressed concern that phone service providers would simply decide 
to remove existing pay phones rather than incur the costs of 
relocating them at the lower height. With regard to this latter 
concern, the commenter misunderstood the manner in which the safe 
harbor obligation will operate in the revised title II regulation 
for elements that comply with the 1991 Standards. If the pay phones 
comply with the 1991 Standards or UFAS, the adoption of the 2010 
Standards does not require retrofitting of these elements to reflect 
incremental changes in the 2010 Standards (see Sec.  35.150(b)(2)). 
However, pay telephones that were required to meet the 1991 
Standards as part of new construction or alterations, but do not in 
fact comply with those standards, will need to be brought into 
compliance with the 2010 Standards as of 18 months from the 
publication date of this final rule. See Sec.  35.151(c)(5)(ii).
    The Department does not agree with the concerns expressed by the 
commenter about reduced revenues from pay phones mounted at lower 
heights. The Department believes that, while given the choice some 
individuals may prefer to use a pay phone that is at a higher 
height, the availability of some phones at a lower height will not 
deter individuals from making needed calls.
    The 2010 Standards will not require every pay phone to be 
installed or moved to a lowered height. The table accompanying 
section 217.2 of the 2010 Standards makes clear that, where one or 
more telephones are provided on a floor, level, or an exterior site, 
only one phone per floor, level, or exterior site must be placed at 
an accessible height. Similarly, where there is one bank of phones 
per floor, level, or exterior site, only one phone per floor, level, 
or exterior site must be accessible. And if there are two or more 
banks of phones per floor, level, or exterior site, only one phone 
per bank must be placed at an accessible height.
    Another comment in opposition to the lower reach range 
requirement was submitted on behalf of a chain of convenience stores 
with fuel stops. The commenter expressed the concern that the 48-
inch side reach ``will make it uncomfortable for the majority of the 
public,'' including persons of taller stature who would need to 
stoop to use equipment such as fuel dispensers mounted at the lower 
height. The commenter offered no objective support for the 
observation that a majority of the public would be rendered 
uncomfortable if, as required in the 2010 Standards, at least one of 
each type of fuel dispenser at a facility was made accessible in 
compliance with the lower reach range. Indeed, the Department 
received no comments from any individuals of tall stature expressing 
concern about accessible elements or equipment being mounted at the 
48-inch height.
    Several convenience store, restaurant, and amusement park 
commenters expressed concern about the burden the lower side-reach 
requirement would place on their businesses in terms of self-service 
food stations and vending areas if the 48-inch requirement were 
applied retroactively. The cost of lowering counter height, in 
combination with the lack of control businesses exercise over 
certain prefabricated service or vending fixtures, outweighed, they 
argued, any benefits to persons with disabilities. For this reason, 
they suggested the lower side-reach requirement be referred back to 
the Access Board.
    These commenters misunderstood the safe harbor and barrier 
removal obligations that will be in effect under the 2010 Standards. 
Those existing self-service food stations and vending areas that 
already are in compliance with the 1991 Standards will not be 
required to satisfy the 2010 Standards unless they engage in 
alterations. With regard to prefabricated vending machines and food 
service components that will be purchased and installed in 
businesses after the 2010 Standards become effective, the Department 
expects that companies will design these machines and fixtures to 
comply with the 2010 Standards in the future, as many have already 
done in the 10 years since the 48-inch side-reach requirement has 
been a part of the model codes and standards used by many 
jurisdictions as the basis for their construction codes.
    A model code organization commented that the lower side-reach 
requirement would create a significant burden if it required 
entities to lower the mounting height for light switches, 
environmental controls, and outlets when an alteration did not 
include the walls where these elements were located, such as when 
``an area is altered or as a path of travel obligation.'' The 
Department believes that the final rule adequately addresses those 
situations about which the commenter expressed concern by not 
requiring the relocation of existing elements, such as light 
switches, environmental controls, and outlets, unless they are 
altered. Moreover, under Sec.  35.151(b)(4)(iii) of the final rule, 
costs for altering the path of travel to an altered area of primary 
function that exceed 20 percent of the overall costs of the 
alteration will be deemed disproportionate.
    The Department has determined that the revised side-reach 
requirement should not be returned to the Access Board for further 
consideration, based in large part on the views expressed by a 
majority of the commenters regarding the need for, and importance 
of, the lower side-reach requirement to ensure access for persons 
with disabilities.

Alterations and Water Closet Clearances in Single-User Toilet Rooms 
With In-Swinging Doors

    The 1991 Standards allow a lavatory to be placed a minimum of 18 
inches from the water closet centerline and a minimum of 36 inches 
from the side wall adjacent to the water closet, which precludes 
side transfers. The 1991 Standards do not allow an in-swinging door 
in a toilet or bathing room to overlap the required clear floor 
space at any accessible fixture. To allow greater transfer options, 
section 604.3.2 of the 2010 Standards prohibits lavatories from 
overlapping the clear floor space at water closets, except in 
residential dwelling units. Section 603.2.3 of the 2010 Standards 
maintains the prohibition on doors swinging into the clear floor 
space or clearance required for any fixture, except that they permit 
the doors of toilet or bathing rooms to swing into the required 
turning space, provided that there is sufficient clearance space for 
the wheelchair outside the door swing. In addition, in single-user 
toilet or bathing rooms, exception 2 of section 603.2.3 of the 2010 
Standards permits the door to swing into the clear floor space of an 
accessible fixture if a clear floor space that measures at least 30 
inches by 48 inches is available outside the arc of the door swing.
    The majority of commenters believed that this requirement would 
increase the number of toilet rooms accessible to individuals with 
disabilities who use wheelchairs or mobility scooters, and will make 
it easier for them to transfer. A number of commenters stated that 
there was no reason to return this provision to the Access Board. 
Numerous commenters noted that this requirement is already included 
in other model accessibility standards and many State and local 
building codes and that the adoption of the 2010 Standards is an 
important part of harmonization efforts.
    Other commenters, mostly trade associations, opposed this 
requirement, arguing that the added cost to the industry outweighs 
any increase in accessibility. Two commenters stated that these 
proposed requirements would add two feet to the width of an 
accessible single-user toilet room; however, another commenter said 
the drawings in the proposed regulation demonstrated that there 
would be no substantial increase in the size of the toilet room. 
Several commenters stated that this requirement would require moving 
plumbing fixtures, walls, or doors at significant additional 
expense. Two commenters wanted the permissible overlap between the 
door swing and clearance around any fixture eliminated. One 
commenter stated that these new requirements will result in fewer 
alterations to toilet rooms to avoid triggering the requirement for 
increased clearances, and suggested that the Department specify that 
repairs, maintenance, or minor alterations would not trigger the 
need to provide increased clearances. Another commenter requested 
that the Department exempt existing guest room bathrooms and single-
user toilet rooms that comply with the 1991 Standards from complying 
with the increased clearances in alterations.
    After careful consideration of these comments, the Department 
believes that the

[[Page 56231]]

revised clearances for single-user toilet rooms will allow safer and 
easier transfers for individuals with disabilities, and will enable 
a caregiver, aide, or other person to accompany an individual with a 
disability into the toilet room to provide assistance. The 
illustrations in Appendix B to the final title III rule, ``Analysis 
and Commentary on the 2010 ADA Standards for Accessible Design,'' 
published elsewhere in this volume and codified as Appendix B to 28 
CFR part 36, describe several ways for public entities and public 
accommodations to make alterations while minimizing additional costs 
or loss of space. Further, in any isolated instances where existing 
structural limitations may entail loss of space, the public entity 
and public accommodation may have a technical infeasibility defense 
for that alteration. The Department also recognizes that in 
attempting to create the required clear floor space pursuant to 
section 604.3.2, there may be certain specific circumstances where 
it would be technically infeasible for a covered entity to comply 
with the clear floor space requirement, such as where an entity must 
move a plumbing wall in a multistory building where the mechanical 
chase for plumbing is an integral part of a building's structure or 
where the relocation of a wall or fixture would violate applicable 
plumbing codes. In such circumstances, the required clear floor 
space would not have to be provided although the covered entity 
would have to provide accessibility to the maximum extent feasible. 
The Department has, therefore, decided not to return this 
requirement to the Access Board.
    Alterations to stairs. The 1991 Standards only require interior 
and exterior stairs to be accessible when they provide access to 
levels that are not connected by an elevator, ramp, or other 
accessible means of vertical access. In contrast, section 210.1 of 
the 2010 Standards requires all newly constructed stairs that are 
part of a means of egress to be accessible. However, exception 2 of 
section 210.1 of the 2010 Standards provides that in alterations, 
stairs between levels connected by an accessible route need not be 
accessible, except that handrails shall be provided. Most commenters 
were in favor of this requirement for handrails in alterations, and 
stated that adding handrails to stairs during alterations was not 
only feasible and not cost-prohibitive, but also provided important 
safety benefits. One commenter stated that making all points of 
egress accessible increased the number of people who could use the 
stairs in an emergency. A majority of the commenters did not want 
this requirement returned to the Access Board for further 
consideration.
    The International Building Code (IBC), which is a private sector 
model construction code, contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
thereby minimizing the impact of this provision on public entities 
and public accommodations. The Department believes that by requiring 
only the addition of handrails to altered stairs where levels are 
connected by an accessible route, the costs of compliance for public 
entities and public accommodations are minimized, while safe egress 
for individuals with disabilities is increased. Therefore, the 
Department has decided not to return this requirement to the Access 
Board.
    Alterations to elevators. Under the 1991 Standards, if an 
existing elevator is altered, only that altered elevator must comply 
with the new construction requirements for accessible elevators to 
the maximum extent feasible. It is therefore possible that a bank of 
elevators controlled by a single call system may contain just one 
accessible elevator, leaving an individual with a disability with no 
way to call an accessible elevator and thus having to wait 
indefinitely until an accessible elevator happens to respond to the 
call system. In the 2010 Standards, when an element in one elevator 
is altered, section 206.6.1 will require the same element to be 
altered in all elevators that are programmed to respond to the same 
call button as the altered elevator.
    Most commenters favored the proposed requirement. This 
requirement, according to these commenters, is necessary so a person 
with a disability need not wait until an accessible elevator 
responds to his or her call. One commenter suggested that elevator 
owners could also comply by modifying the call system so the 
accessible elevator could be summoned independently. One commenter 
suggested that this requirement would be difficult for small 
businesses located in older buildings, and one commenter suggested 
that this requirement be sent back to the Access Board.
    After considering the comments, the Department agrees that this 
requirement is necessary to ensure that when an individual with a 
disability presses a call button, an accessible elevator will arrive 
in a timely manner. The IBC contains a similar provision, and most 
jurisdictions enforce a version of the IBC as their building code, 
minimizing the impact of this provision on public entities and 
public accommodations. Public entities and businesses located in 
older buildings need not comply with this requirement where it is 
technically infeasible to do so. Further, as pointed out by one 
commenter, modifying the call system so the accessible elevator can 
be summoned independently is another means of complying with this 
requirement in lieu of altering all other elevators programmed to 
respond to the same call button. Therefore, the Department has 
decided not to return this requirement to the Access Board.
    Location of accessible routes to stages. The 1991 Standards at 
section 4.33.5 require an accessible route to connect the accessible 
seating and the stage, as well as other ancillary spaces used by 
performers. The 2010 Standards at section 206.2.6 provide in 
addition that where a circulation path directly connects the seating 
area and the stage, the accessible route must directly connect the 
accessible seating and the stage, and, like the 1991 Standards, an 
accessible route must connect the stage with the ancillary spaces 
used by performers.
    In the NPRM, the Department asked operators of auditoria about 
the extent to which auditoria already provide direct access to 
stages and whether there were planned alterations over the next 15 
years that included accessible direct routes to stages. The 
Department also asked how to quantify the benefits of this 
requirement for persons with disabilities, and invited commenters to 
provide illustrative anecdotal experiences about the requirement's 
benefits. The Department received many comments regarding the costs 
and benefits of this requirement. Although little detail was 
provided, many industry and governmental entity commenters 
anticipated that the costs of this requirement would be great and 
that it would be difficult to implement. They noted that premium 
seats may have to be removed and that load-bearing walls may have to 
be relocated. These commenters suggested that the significant costs 
would deter alterations to the stage area for a great many 
auditoria. Some commenters suggested that ramps to the front of the 
stage may interfere with means of egress and emergency exits. 
Several commenters requested that the requirement apply to new 
construction only, and one industry commenter requested an exemption 
for stages used in arenas or amusement parks where there is no 
audience participation or where the stage is a work area for 
performers only. One commenter requested that the requirement not 
apply to temporary stages.
    The final rule does not require a direct accessible route to be 
constructed where a direct circulation path from the seating area to 
the stage does not exist. Consequently, those commenters who 
expressed concern about the burden imposed by the revised 
requirement (i.e., where the stage is constructed with no direct 
circulation path connecting the general seating and performing area) 
should note that the final rule will not require the provision of a 
direct accessible route under these circumstances. The final rule 
applies to permanent stages, as well as ``temporary stages,'' if 
there is a direct circulation path from the seating area to the 
stage. However, the Department does recognize that in some 
circumstances, such as an alteration to a primary function area, the 
ability to provide a direct accessible route to a stage may be 
costly or technically infeasible, the auditorium owner is not 
precluded by the revised requirement from asserting defenses 
available under the regulation. In addition, the Department notes 
that since section 4.33.5 of the 1991 Standards requires an 
accessible route to a stage, the safe harbor will apply to existing 
facilities whose stages comply with the 1991 Standards.
    Several governmental entities supported accessible auditoria and 
the revised requirement. One governmental entity noted that its 
State building code already required direct access, that it was 
possible to provide direct access, and that creative solutions had 
been found to do so.
    Many advocacy groups and individual commenters strongly 
supported the revised requirement, discussing the acute need for 
direct access to stages as it impacts a great number of people at 
important life events such as graduations and awards ceremonies, at 
collegiate and competitive performances and other school events, and 
at entertainment events that include audience participation. Many 
commenters expressed the belief that direct access is essential for 
integration

[[Page 56232]]

mandates to be satisfied and that separate routes are stigmatizing 
and unequal. The Department agrees with these concerns.
    Commenters described the impact felt by persons in wheelchairs 
who are unable to access the stage at all when others are able to do 
so. Some of these commenters also discussed the need for performers 
and production staff who use wheelchairs to have direct access to 
the stage and provided a number of examples that illustrated the 
importance of the rule proposed in the NPRM. Personal anecdotes were 
provided in comments and at the Department's public hearing on the 
NPRM. One mother spoke passionately and eloquently about the unequal 
treatment experienced by her daughter, who uses a wheelchair, at 
awards ceremonies and band concerts. Her daughter was embarrassed 
and ashamed to be carried by her father onto a stage at one band 
concert. When the venue had to be changed for another concert to an 
accessible auditorium, the band director made sure to comment that 
he was unhappy with the switch. Rather than endure the embarrassment 
and indignities, her child dropped out of band the following year. 
Another father commented about how he was unable to speak from the 
stage at a PTA meeting at his child's school. Speaking from the 
floor limited his line of sight and his participation. Several 
examples were provided of children who could not participate on 
stage during graduation, awards programs, or special school events, 
such as plays and festivities. One student did not attend his 
college graduation because he would not be able to get on stage. 
Another student was unable to participate in the class Christmas 
programs or end-of-year parties unless her father could attend and 
lift her onto the stage. These commenters did not provide a method 
to quantify the benefits that would accrue by having direct access 
to stages. One commenter stated, however, that ``the cost of dignity 
and respect is without measure.''
    Many industry commenters and governmental entities suggested 
that the requirement be sent back to the Access Board for further 
consideration. One industry commenter mistakenly noted that some 
international building codes do not incorporate the requirement and 
that therefore there is a need for further consideration. However, 
the Department notes that both the 2003 and 2006 editions of the IBC 
include scoping provisions that are almost identical to this 
requirement and that these editions of the model code are the most 
frequently used. Many individuals and advocacy group commenters 
requested that the requirement be adopted without further delay. 
These commenters spoke of the acute need for direct access to stages 
and the amount of time it would take to resubmit the requirement to 
the Access Board. Several commenters noted that the 2004 ADAAG 
tracks recent model codes and thus there is no need for further 
consideration. The Department agrees that no further delay is 
necessary and therefore has decided not to return the requirement to 
the Access Board for further consideration.
    Attorney areas and witness stands. The 1991 Standards do not 
require that public entities meet specific architectural standards 
with regard to the construction and alteration of courtrooms and 
judicial facilities. Because it is apparent that the judicial 
facilities of State and local governments have often been 
inaccessible to individuals with disabilities, as part of the NPRM, 
the Department proposed the adoption of sections 206.2.4, 231.2, 
808, 304, 305, and 902 of the 2004 ADAAG concerning judicial 
facilities and courtrooms, including requirements for accessible 
courtroom stations and accessible jury boxes and witness stands.
    Those who commented on access to judicial facilities and 
courtrooms uniformly favored the adoption of the 2010 Standards. 
Virtually all of the commenters stated that accessible judicial 
facilities are crucial to ensuring that individuals with 
disabilities are afforded due process under law and have an equal 
opportunity to participate in the judicial process. None of the 
commenters favored returning this requirement to the Access Board 
for further consideration.
    The majority of commenters, including many disability rights and 
advocacy organizations, stated that it is crucial for individuals 
with disabilities to have effective and meaningful access to our 
judicial system so as to afford them due process under law. They 
objected to asking the Access Board to reconsider this requirement. 
In addition to criticizing the initial RIA for virtually ignoring 
the intangible and non-monetary benefits associated with accessible 
courtrooms, these commenters frequently cited the Supreme Court's 
decision in Tennessee v. Lane, 541 U.S. 509, 531 (2004),\4\ as ample 
justification for the requirement, noting the Court's finding that 
``[t]he unequal treatment of disabled persons in the administration 
of judicial services has a long history, and has persisted despite 
several legislative efforts to remedy the problem of disability 
discrimination.'' Id. at 531. These commenters also made a number of 
observations, including the following: providing effective access to 
individuals with mobility impairments is not possible when 
architectural barriers impede their path of travel and negatively 
emphasize an individual's disability; the perception generated by 
makeshift accommodations discredits witnesses and attorneys with 
disabilities, who should not be stigmatized or treated like second-
class citizens; the cost of accessibility modifications to existing 
courthouses can often be significantly decreased by planning ahead, 
by focusing on low-cost options that provide effective access, and 
by addressing existing barriers when reasonable modifications to the 
courtroom can be made; by planning ahead and by following best 
practices, jurisdictions can avoid those situations where it is 
apparent that someone's disability is the reason why ad hoc 
arrangements have to be made prior to the beginning of court 
proceedings; and accessibility should be a key concern during the 
planning and construction process so as to ensure that both 
courtroom grandeur and accessibility are achieved. One commenter 
stated that, in order for attorneys with disabilities to perform 
their professional duties to their clients and the court, it is 
essential that accessible courtrooms, conference rooms, law 
libraries, judicial chambers, and other areas of a courthouse be 
made barrier-free by taking accessible design into account prior to 
construction.
---------------------------------------------------------------------------

    \4\ The Supreme Court in Tennessee v. Lane, 541 U.S. 509, 533-
534 (2004), held that title II of the ADA constitutes a valid 
exercise of Congress' enforcement power under the Fourteenth 
Amendment in cases implicating the fundamental right of access to 
the courts.
---------------------------------------------------------------------------

    Numerous commenters identified a variety of benefits that would 
accrue as a result of requiring judicial facilities to be 
accessible. These included the following: maintaining the decorum of 
the courtroom and eliminating the disruption of court proceedings 
when individuals confront physical barriers; providing an accessible 
route to the witness stand and attorney area and clear floor space 
to accommodate a wheelchair within the witness area; establishing 
crucial lines of sight between the judge, jury, witnesses, and 
attorneys--which commenters described as crucial; ensuring that the 
judge and the jury will not miss key visual indicators of a witness; 
maintaining a witness's or attorney's dignity and credibility; 
shifting the focus from a witness's disability to the substance of 
that person's testimony; fostering the independence of an individual 
with disability; allowing persons with mobility impairments to 
testify as witnesses, including as expert witnesses; ensuring the 
safety of various participants in a courtroom proceeding; and 
avoiding unlawful discrimination. One commenter stated that equal 
access to the well of the courtroom for both attorney and client is 
important for equal participation and representation in our court 
system. Other commenters indicated that accessible judicial 
facilities benefit a wide range of people, including many persons 
without disabilities, senior citizens, parents using strollers with 
small children, and attorneys and court personnel wheeling documents 
into the courtroom. One commenter urged the adoption of the work 
area provisions because they would result in better workplace 
accessibility and increased productivity. Several commenters urged 
the adoption of the rule because it harmonizes the ADAAG with the 
model IBC, the standards developed by the American National 
Standards Institute (ANSI), and model codes that have been widely 
adopted by State and local building departments, thus increasing the 
prospects for better understanding and compliance with the ADAAG by 
architects, designers, and builders.
    Several commenters mentioned the report ``Justice for All: 
Designing Accessible Courthouses'' (Nov. 15, 2006), available at 
http://www.access-board.gov/caac/report.htm (Nov. 24, 2009) (last 
visited June 24, 2010). The report, prepared by the Courthouse 
Access Advisory Committee for the Access Board, contained 
recommendations for the Board's use in developing and disseminating 
guidance on accessible courthouse design under the ADA and the ABA. 
These commenters identified some of the report's best practices 
concerning courtroom accessibility for witness stands, jury boxes, 
and attorney areas; addressed the

[[Page 56233]]

costs and benefits arising from the use of accessible courtrooms; 
and recommended that the report be incorporated into the 
Department's final rule. With respect to existing courtrooms, one 
commenter in this group suggested that consideration be given to 
ensuring that there are barrier-free emergency evacuation routes for 
all persons in the courtroom, including different evacuation routes 
for different classes of individuals given the unique nature of 
judicial facilities and courtrooms.
    The Department declines to incorporate the report into the 
regulation. However, the Department encourages State and local 
governments to consult the Committee report as a useful guide on 
ways to facilitate and increase accessibility of their judicial 
facilities. The report includes many excellent examples of 
accessible courtroom design.
    One commenter proposed that the regulation also require a 
sufficient number of accessible benches for judges with 
disabilities. Under section 206.2.4 of the 2004 ADAAG, raised 
courtroom stations used by judges and other judicial staff are not 
required to provide full vertical access when first constructed or 
altered, as long as the required clear floor space, maneuvering 
space, and any necessary electrical service for future installation 
of a means of vertical access, is provided at the time of new 
construction or can be achieved without substantial reconstruction 
during alterations. The Department believes that this standard 
easily allows a courtroom station to be adapted to provide vertical 
access in the event a judge requires an accessible judge's bench.
    The Department received several anecdotal accounts of courtroom 
experiences of individuals with disabilities. One commenter recalled 
numerous difficulties that her law partner faced as the result of 
inaccessible courtrooms, and their concerns that the attention of 
judge and jury was directed away from the merits of case to the 
lawyer and his disability. Among other things, the lawyer had to ask 
the judges on an appellate panel to wait while he maneuvered through 
insufficient space to the counsel table; ask judges to relocate 
bench conferences to accessible areas; and make last-minute 
preparations and rearrangements that his peers without disabilities 
did not have to make. Another commenter with extensive experience as 
a lawyer, witness, juror, and consultant observed that it is common 
practice for a witness who uses mobility devices to sit in front of 
the witness stand. He described how disconcerting and unsettling it 
has been for him to testify in front of the witness stand, which 
allowed individuals in the courtroom to see his hands or legs 
shaking because of spasticity, making him feel like a second-class 
citizen.
    Two other commenters with mobility disabilities described their 
experiences testifying in court. One accessibility consultant stated 
that she was able to represent her clients successfully when she had 
access to an accessible witness stand because it gave her the 
ability ``to look the judge in the eye, speak comfortably and be 
heard, hold up visual aids that could be seen by the judge, and 
perform without an architectural stigma.'' She did not believe that 
she was able to achieve a comparable outcome or have meaningful 
access to the justice system when she testified from an inaccessible 
location. Similarly, a licensed clinical social worker indicated 
that she has testified in several cases in accessible courtrooms, 
and that having full access to the witness stand in the presence of 
the judge and the jury was important to her effectiveness as an 
expert witness. She noted that accessible courtrooms often are not 
available, and that she was aware of instances in which victims, 
witnesses, and attorneys with disabilities have not been able to 
obtain needed disability accommodations in order to fulfill their 
roles at trial.
    Two other commenters indicated that they had been chosen for 
jury duty but that they were effectively denied their right to 
participate as jurors because the courtrooms were not accessible. 
Another commenter indicated that he has had to sit apart from the 
other jurors because the jury box was inaccessible.
    A number of commenters expressed approval of actions taken by 
States to facilitate access in judicial facilities. A member of a 
State commission on disability noted that the State had been working 
toward full accessibility since 1997 when the Uniform Building Code 
required interior accessible routes. This commenter stated that the 
State's district courts had been renovated to the maximum extent 
feasible to provide greater access. This commenter also noted that a 
combination of Community Development Block Grant money and State 
funds are often awarded for renovations of courtroom areas. One 
advocacy group that has dealt with court access issues stated that 
members of the State legal community and disability advocates have 
long been promoting efforts to ensure that the State courts are 
accessible to individuals with disabilities. The comment cited a 
publication distributed to the Washington State courts by the State 
bar association entitled, ``Ensuring Equal Access to the Courts for 
Persons with Disabilities.'' (Aug. 2006), available at http://www.wsba.org/ensuringaccessguidebook.pdf (last visited July 20, 
2010). In addition, the commenter also indicated that the State 
supreme court had promulgated a new rule governing how the courts 
should respond to requests of accommodation based upon disability; 
the State legislature had created the position of Disability Access 
Coordinator for Courts to facilitate accessibility in the court 
system; and the State legislature had passed a law requiring that 
all planned improvements and alterations to historic courthouses be 
approved by the ADA State facilities program manager and committee 
in order to ensure that the alterations will enhance accessibility.
    The Department has decided to adopt the requirements in the 2004 
ADAAG with respect to judicial facilities and courtrooms and will 
not ask the Access Board to review these requirements. The final 
rule is wholly consistent with the objectives of the ADA. It 
addresses a well-documented history of discrimination with respect 
to judicial administration and significantly increases accessibility 
for individuals with disabilities. It helps ensure that they will 
have an opportunity to participate equally in the judicial process. 
As stated, the final rule is consistent with a number of model and 
local building codes that have been widely adopted by State and 
local building departments and provides greater uniformity for 
planners, architects, and builders.
    Assistive listening systems. The 1991 Standards at sections 
4.33.6 and 4.33.7 require assistive listening systems (ALS) in 
assembly areas and prescribe general performance standards for ALS 
systems. In the NPRM, the Department proposed adopting the technical 
specifications in the 2004 ADAAG for ALS that are intended to ensure 
better quality and effective delivery of sound and information for 
persons with hearing impairments, especially those using hearing 
aids. The Department noted in the NPRM that since 1991, advancements 
in ALS and the advent of digital technology have made these systems 
more amenable to uniform standards, which, among other things, 
should ensure that a certain percentage of required ALS systems are 
hearing-aid compatible. 73 FR 34466, 34471 (June 17, 2008). The 2010 
Standards at section 219 provide scoping requirements and at section 
706 address receiver jacks, hearing aid compatibility, sound 
pressure level, signal-to-noise ratio, and peak clipping level. The 
Department requested comments specifically from arena and assembly 
area administrators on the cost and maintenance issues associated 
with ALS, asked generally about the costs and benefits of ALS, and 
asked whether, based upon the expected costs of ALS, the issue 
should be returned to the Access Board for further consideration.
    Comments from advocacy organizations noted that persons who 
develop significant hearing loss often discontinue their normal 
routines and activities, including meetings, entertainment, and 
large group events, due to a sense of isolation caused by the 
hearing loss or embarrassment. Individuals with longstanding hearing 
loss may never have participated in group activities for many of the 
same reasons. Requiring ALS may allow individuals with disabilities 
to contribute to the community by joining in government and public 
events, and increasing economic activity associated with community 
activities and entertainment. Making public events and entertainment 
accessible to persons with hearing loss also brings families and 
other groups that include persons with hearing loss into more 
community events and activities, thus exponentially increasing the 
benefit from ALS.
    Many commenters noted that when a person has significant hearing 
loss, that person may be able to hear and understand information in 
a quiet situation with the use of hearing aids or cochlear implants; 
however, as background noise increases and the distance between the 
source of the sound and the listener grows, and especially where 
there is distortion in the sound, an ALS becomes essential for basic 
comprehension and understanding. Commenters noted that among the 31 
million Americans with hearing loss, and with a projected increase 
to over 78 million Americans with hearing loss by 2030, the benefit 
from ALS is huge and

[[Page 56234]]

growing. Advocates for persons with disabilities and individuals 
commented that they appreciated the improvements in the 2004 ADAAG 
standards for ALS, including specifications for the ALS systems and 
performance standards. They noted that neckloops that translate the 
signal from the ALS transmitter to a frequency that can be heard on 
a hearing aid or cochlear implant are much more effective than 
separate ALS system headsets, which sometimes create feedback, often 
malfunction, and may create distractions for others seated nearby. 
Comments from advocates and users of ALS systems consistently noted 
that the Department's regulation should, at a minimum, be consistent 
with the 2004 ADAAG. Although there were requests for adjustments in 
the scoping requirements from advocates seeking increased scoping 
requirements, and from large venue operators seeking fewer 
requirements, there was no significant concern expressed by 
commenters about the technical specifications for ALS in the 2004 
ADAAG.
    Some commenters from trade associations and large venue owners 
criticized the scoping requirements as too onerous and one commenter 
asked for a remand to the Access Board for new scoping rules. 
However, one State agency commented that the 2004 ADAAG largely 
duplicates the requirements in the 2006 IBC and the 2003 ANSI codes, 
which means that entities that comply with those standards would not 
incur additional costs associated with ADA compliance.
    According to one State office of the courts, the cost to install 
either an infrared system or an FM system at average-sized 
facilities, including most courtrooms covered by title II, would be 
between $500 and $2,000, which the agency viewed as a small price in 
comparison to the benefits of inclusion. Advocacy organizations 
estimated wholesale costs of ALS systems at about $250 each and 
individual neckloops to link the signal from the ALS transmitter to 
hearing aids or cochlear implants at less than $50 per unit. Many 
commenters pointed out that if a facility already is using induction 
neckloops, it would already be in compliance and would not have any 
additional installation costs. One major city commented that annual 
maintenance is about $2,000 for the entire system of performance 
venues in the city. A trade association representing very large 
venues estimated annual maintenance and upkeep expenses, including 
labor and replacement parts, to be at most about $25,000 for a very 
large professional sports stadium.
    One commenter suggested that the scoping requirements for ALS in 
the 2004 ADAAG were too stringent and that the Department should 
return them to the Access Board for further review and 
consideration. Others commented that the requirement for new ALS 
systems should mandate multichannel receivers capable of receiving 
audio description for persons who are blind, in addition to a 
channel for amplification for persons who are hard of hearing. Some 
comments suggested that the Department should require a set schedule 
and protocol of mandatory maintenance. Department regulations 
already require maintenance of accessible features at Sec.  
35.133(a) of the title II regulation, which obligates a title II 
entity to maintain ALS in good working order. The Department 
recognizes that maintenance of ALS is key to its usability. 
Necessary maintenance will vary dramatically from venue to venue 
based upon a variety of factors including frequency of use, number 
of units, quality of equipment, and others items. Accordingly, the 
Department has determined that it is not appropriate to mandate 
details of maintenance, but notes that failure to maintain ALS would 
violate Sec.  35.133(a) of this rule.
    The NPRM asked whether the Department should return the issue of 
ALS requirements to the Access Board. The Department has received 
substantial feedback on the technical and scoping requirements for 
ALS and is convinced that these requirements are reasonable and that 
the benefits justify the requirements. In addition, the Department 
believes that the new specifications will make ALS work more 
effectively for more persons with disabilities, which, together with 
a growing population of new users, will increase demand for ALS, 
thus mooting criticism from some large venue operators about 
insufficient demand. Thus, the Department has determined that it is 
unnecessary to refer this issue back to the Access Board for 
reconsideration.
    Accessible teeing grounds, putting greens, and weather shelters. 
In the NPRM, the Department sought public input on the proposed 
requirements for accessible golf courses. These requirements 
specifically relate to accessible routes within the boundaries of 
courses, as well as the accessibility of golfing elements (e.g., 
teeing grounds, putting greens, weather shelters).
    In the NPRM, the Department sought information from the owners 
and operators of golf courses, both public and private, on the 
extent to which their courses already have golf car passages, and, 
if so, whether they intended to avail themselves of the proposed 
accessible route exception for golf car passages. 73 FR 34466, 34471 
(June 17, 2008).
    Most commenters expressed support for the adoption of an 
accessible route requirement that includes an exception permitting 
golf car passage as all or part of an accessible route. Comments in 
favor of the proposed standard came from golf course owners and 
operators, individuals, organizations, and disability rights groups, 
while comments opposing adoption of the golf course requirements 
generally came from golf courses and organizations representing the 
golf course industry.
    The majority of commenters expressed the general viewpoint that 
nearly all golf courses provide golf cars and have either well-
defined paths or permit golf cars to drive on the course where paths 
are not present, thus meeting the accessible route requirement. 
Several commenters disagreed with the assumption in the initial RIA, 
that virtually every tee and putting green on an existing course 
would need to be regraded in order to provide compliant accessible 
routes. According to one commenter, many golf courses are relatively 
flat with little slope, especially those heavily used by 
recreational golfers. This commenter concurred with the Department 
that it is likely that most existing golf courses have a golf car 
passage to tees and greens, thereby substantially minimizing the 
cost of bringing an existing golf course into compliance with the 
proposed standards. One commenter reported that golf course access 
audits found that the vast majority of public golf courses would 
have little difficulty in meeting the proposed golf course 
requirements. In the view of some commenters, providing access to 
golf courses would increase golf participation by individuals with 
disabilities.
    The Department also received many comments requesting 
clarification of the term ``golf car passage.'' For example, one 
commenter requesting clarification of the term ``golf car passage'' 
argued that golf courses typically do not provide golf car paths or 
pedestrian paths onto the actual teeing grounds or greens, many of 
which are higher or lower than the car path. This commenter argued 
that if golf car passages were required to extend onto teeing 
grounds and greens in order to qualify for an exception, then some 
golf courses would have to substantially regrade teeing grounds and 
greens at a high cost.
    After careful consideration of the comments, the Department has 
decided to adopt the 2010 Standards specific to golf facilities. The 
Department believes that in order for individuals with mobility 
disabilities to have an opportunity to play golf that is equal to 
golfers without disabilities, it is essential that golf courses 
provide an accessible route or accessible golf car passage to 
connect accessible elements and spaces within the boundary of the 
golf course, including teeing grounds, putting greens, and weather 
shelters.

Public Comments on Other NPRM Issues

    Equipment and furniture. In the 1991 title II regulation, there 
are no specific provisions addressing equipment and furniture, 
although Sec.  35.150(b) states that one means by which a public 
entity can make its program accessible to individuals with 
disabilities is ``redesign of equipment.'' In the NPRM, the 
Department announced its intention not to regulate equipment, 
proposing instead to continue with the current approach, under which 
equipment and furniture are covered by other provisions, including 
those requiring reasonable modifications of policies, practices, or 
procedures, program accessibility, and effective communication. The 
Department suggested that entities apply the accessibility standards 
for fixed equipment in the 2004 ADAAG to analogous free-standing 
equipment in order to ensure that such equipment is accessible, and 
that entities consult relevant portions of the 2004 ADAAG and 
standards from other Federal agencies to make equipment accessible 
to individuals who are blind or have low vision (e.g., the 
communication-related standards for ATMs in the 2004 ADAAG).
    The Department received numerous comments objecting to this 
decision and urging the Department to issue equipment and furniture 
regulations. Based on these comments, the Department has decided 
that it needs to revisit the issuance of equipment and furniture 
regulations and it intends to do so in future rulemaking.

[[Page 56235]]

    Among the commenters' key concerns, many from the disability 
community and some public entities, were objections to the 
Department's earlier decision not to issue equipment regulations, 
especially for medical equipment. These groups recommended that the 
Department list by name certain types of medical equipment that must 
be accessible, including exam tables (that lower to 15 inches above 
floor or lower), scales, medical and dental chairs, and radiologic 
equipment (including mammography equipment). These commenters 
emphasized that the provision of medically related equipment and 
furniture should also be specifically regulated since they are not 
included in the 2004 ADAAG (while depositories, change machines, 
fuel dispensers, and ATMs were) and because of their crucial role in 
the provision of healthcare. Commenters described how the lack of 
accessible medical equipment negatively affects the health of 
individuals with disabilities. For example, some individuals with 
mobility disabilities do not get thorough medical care because their 
health providers do not have accessible examination tables or 
scales.
    Commenters also said that the Department's stated plan to assess 
the financial impact of free-standing equipment on businesses was 
not necessary, as any regulations could include a financial 
balancing test. Other commenters representing persons who are blind 
or have low vision urged the Department to mandate accessibility for 
a wide range of equipment--including household appliances (stoves, 
washers, microwaves, and coffee makers), audiovisual equipment 
(stereos and DVD players), exercise machines, vending equipment, 
ATMs, computers at Internet cafes or hotel business centers, 
reservations kiosks at hotels, and point-of-sale devices--through 
speech output and tactile labels and controls. They argued that 
modern technology allows such equipment to be made accessible at 
minimal cost. According to these commenters, the lack of such 
accessibility in point-of-sale devices is particularly problematic 
because it forces blind individuals to provide personal or sensitive 
information (such as personal identification numbers) to third 
parties, which exposes them to identity fraud. Because the ADA does 
not apply directly to the manufacture of products, the Department 
lacks the authority to issue design requirements for equipment 
designed exclusively for use in private homes. See Department of 
Justice, Americans with Disabilities Act, ADA Title III Technical 
Assistance Manual Covering Public Accommodations and Commercial 
Facilities, III-4.4200, available at http://www.ada.gov/taman3.
    Some commenters urged the Department to require swimming pool 
operators to provide aquatic wheelchairs for the use of persons with 
disabilities when the swimming pool has a sloped entry. If there is 
a sloped entry, a person who uses a wheelchair would require a 
wheelchair designed for use in the water in order to gain access to 
the pool because taking a personal wheelchair into water would rust 
and corrode the metal on the chair and damage any electrical 
components of a power wheelchair. Providing an aquatic wheelchair 
made of non-corrosive materials and designed for access into the 
water will protect the water from contamination and avoid damage to 
personal wheelchairs or other mobility aids.
    Additionally, many commenters urged the Department to regulate 
the height of beds in accessible hotel guest rooms and to ensure 
that such beds have clearance at the floor to accommodate a 
mechanical lift. These commenters noted that in recent years, hotel 
beds have become higher as hotels use thicker mattresses, thereby 
making it difficult or impossible for many individuals who use 
wheelchairs to transfer onto hotel beds. In addition, many hotel 
beds use a solid-sided platform base with no clearance at the floor, 
which prevents the use of a portable lift to transfer an individual 
onto the bed. Consequently, individuals who bring their own lift to 
transfer onto the bed cannot independently get themselves onto the 
bed. Some commenters suggested various design options that might 
avoid these situations.
    The Department intends to provide specific guidance relating to 
both hotel beds and aquatic wheelchairs in a future rulemaking. For 
the present, the Department reminds covered entities that they have 
an obligation to undertake reasonable modifications to their current 
policies and to make their programs accessible to persons with 
disabilities. In many cases, providing aquatic wheelchairs or 
adjusting hotel bed heights may be necessary to comply with those 
requirements.
    The Department has decided not to add specific scoping or 
technical requirements for equipment and furniture in this final 
rule. Other provisions of the regulation, including those requiring 
reasonable modifications of policies, practices, or procedures, 
program accessibility, and effective communication may require the 
provision of accessible equipment in individual circumstances. The 
1991 title II regulation at Sec.  35.150(a) requires that entities 
operate each service, program, or activity so that, when viewed in 
its entirety, each is readily accessible to, and usable by, 
individuals with disabilities, subject to a defense of fundamental 
alteration or undue financial and administrative burdens. Section 
35.150(b) specifies that such entities may meet their program 
accessibility obligation through the ``redesign of equipment.'' The 
Department expects to undertake a rulemaking to address these issues 
in the near future.
    Accessible golf cars. An accessible golf car means a device that 
is designed and manufactured to be driven on all areas of a golf 
course, is independently usable by individuals with mobility 
disabilities, has a hand-operated brake and accelerator, carries 
golf clubs in an accessible location, and has a seat that both 
swivels and raises to put the golfer in a standing or semi-standing 
position.
    The 1991 title II regulation contained no language specifically 
referencing accessible golf cars. After considering the comments 
addressing the ANPRM's proposed requirement that golf courses make 
at least one specialized golf car available for the use of 
individuals with disabilities, and the safety of accessible golf 
cars and their use on golf course greens, the Department stated in 
the NPRM that it would not issue regulations specific to golf cars.
    The Department received many comments in response to its 
decision to propose no new regulation specific to accessible golf 
cars. The majority of commenters urged the Department to require 
golf courses to provide accessible golf cars. These comments came 
from individuals, disability advocacy and recreation groups, a 
manufacturer of accessible golf cars, and representatives of local 
government. Comments supporting the Department's decision not to 
propose a new regulation came from golf course owners, associations, 
and individuals.
    Many commenters argued that while the existing title II 
regulation covered the issue, the Department should nonetheless 
adopt specific regulatory language requiring golf courses to provide 
accessible golf cars. Some commenters noted that many local 
governments and park authorities that operate public golf courses 
have already provided accessible golf cars. Experience indicates 
that such golf cars may be used without damaging courses. Some 
argued that having accessible golf cars would increase golf course 
revenue by enabling more golfers with disabilities to play the game. 
Several commenters requested that the Department adopt a regulation 
specifically requiring each golf course to provide one or more 
accessible golf cars. Other commenters recommended allowing golf 
courses to make ``pooling'' arrangements to meet demands for such 
cars. A few commenters expressed support for using accessible golf 
cars to accommodate golfers with and without disabilities. 
Commenters also pointed out that the Departments of the Interior and 
Defense have already mandated that golf courses under their 
jurisdictional control must make accessible golf cars available 
unless it can be demonstrated that doing so would change the 
fundamental nature of the game.
    While an industry association argued that at least two models of 
accessible golf cars meet the specifications recognized in the 
field, and that accessible golf cars cause no more damage to greens 
or other parts of golf courses than players standing or walking 
across the course, other commenters expressed concerns about the 
potential for damage associated with the use of accessible golf 
cars. Citing safety concerns, golf organizations recommended that an 
industry safety standard be developed.
    Although the Department declines to add specific scoping or 
technical requirements for golf cars to this final rule, the 
Department expects to address requirements for accessible golf cars 
in future rulemaking. In the meantime, the Department believes that 
golfers with disabilities who need accessible golf cars are 
protected by other existing provisions in the title II regulation, 
including those requiring reasonable modifications of policies, 
practices, or procedures, and program accessibility.
    Web site accessibility. Many commenters expressed disappointment 
that the NPRM did not require title II entities to make their Web 
sites, through which they offer programs and services, accessible to 
individuals with

[[Page 56236]]

disabilities, including those who are blind or have low vision. 
Commenters argued that the cost of making Web sites accessible, 
through Web site design, is minimal, yet critical to enabling 
individuals with disabilities to benefit from the entity's programs 
and services. Internet Web sites, when accessible, provide 
individuals with disabilities great independence, and have become an 
essential tool for many Americans. Commenters recommended that the 
Department require covered entities, at a minimum, to meet the 
section 508 Standard for Electronic and Information Technology for 
Internet accessibility. Under section 508 of the Rehabilitation Act 
of 1973, Federal agencies are required to make their Web sites 
accessible. 29 U.S.C. 794(d); 36 CFR 1194.
    The Department agrees that the ability to access, on an equal 
basis, the programs and activities offered by public entities 
through Internet-based Web sites is of great importance to 
individuals with disabilities, particularly those who are blind or 
who have low vision. When the ADA was enacted in 1990, the Internet 
was unknown to most Americans. Today, the Internet plays a critical 
role in daily life for personal, civic, commercial, and business 
purposes. In a period of shrinking resources, public entities 
increasingly rely on the web as an efficient and comprehensive way 
to deliver services and to inform and communicate with their 
citizens and the general public. In light of the growing importance 
Web sites play in providing access to public services and to 
disseminating the information citizens need to participate fully in 
civic life, accessing the Web sites of public entities can play a 
significant role in fulfilling the goals of the ADA.
    Although the language of the ADA does not explicitly mention the 
Internet, the Department has taken the position that title II covers 
Internet Web site access. Public entities that choose to provide 
services through web-based applications (e.g., renewing library 
books or driver's licenses) or that communicate with their 
constituents or provide information through the Internet must ensure 
that individuals with disabilities have equal access to such 
services or information, unless doing so would result in an undue 
financial and administrative burden or a fundamental alteration in 
the nature of the programs, services, or activities being offered. 
The Department has issued guidance on the ADA as applied to the Web 
sites of public entities in a 2003 publication entitled, 
Accessibility of State and Local Government Web sites to People with 
Disabilities, (June 2003) available at http://www.ada.gov/websites2.htm. As the Department stated in that publication, an 
agency with an inaccessible Web site may also meet its legal 
obligations by providing an alternative accessible way for citizens 
to use the programs or services, such as a staffed telephone 
information line. However, such an alternative must provide an equal 
degree of access in terms of hours of operation and the range of 
options and programs available. For example, if job announcements 
and application forms are posted on an inaccessible Web site that is 
available 24 hours a day, seven days a week to individuals without 
disabilities, then the alternative accessible method must also be 
available 24 hours a day, 7 days a week. Additional guidance is 
available in the Web Content Accessibility Guidelines (WCAG), (May 
5, 1999) available at http://www.w3.org/TR/WAI-WEBCONTENT (last 
visited June 24, 2010) which are developed and maintained by the Web 
Accessibility Initiative, a subgroup of the World Wide Web 
Consortium (W3C[supreg]).
    The Department expects to engage in rulemaking relating to 
website accessibility under the ADA in the near future. The 
Department has enforced the ADA in the area of website accessibility 
on a case-by-case basis under existing rules consistent with the 
guidance noted above, and will continue to do so until the issue is 
addressed in a final regulation.
    Multiple chemical sensitivities. The Department received 
comments from a number of individuals asking the Department to add 
specific language to the final rule addressing the needs of 
individuals with chemical sensitivities. These commenters expressed 
concern that the presence of chemicals interferes with their ability 
to participate in a wide range of activities. These commenters also 
urged the Department to add multiple chemical sensitivities to the 
definition of a disability.
    The Department has determined not to include specific provisions 
addressing multiple chemical sensitivities in the final rule. In 
order to be viewed as a disability under the ADA, an impairment must 
substantially limit one or more major life activities. An 
individual's major life activities of respiratory or neurological 
functioning may be substantially limited by allergies or sensitivity 
to a degree that he or she is a person with a disability. When a 
person has this type of disability, a covered entity may have to 
make reasonable modifications in its policies and practices for that 
person. However, this determination is an individual assessment and 
must be made on a case-by-case basis.
    Examinations and Courses. The Department received one comment 
requesting that it specifically include language regarding 
examinations and courses in the title II regulation. Because section 
309 of the ADA 42 U.S.C. 12189, reaches ``[a]ny person that offers 
examinations or courses related to applications, licensing, 
certification, or credentialing for secondary or post secondary 
education, professional, or trade purposes,'' public entities also 
are covered by this section of the ADA. Indeed, the requirements 
contained in title II (including the general prohibitions against 
discrimination, the program access requirements, the reasonable 
modifications requirements, and the communications requirements) 
apply to courses and examinations administered by public entities 
that meet the requirements of section 309. While the Department 
considers these requirements to be sufficient to ensure that 
examinations and courses administered by public entities meet the 
section 309 requirements, the Department acknowledges that the title 
III regulation, because it addresses examinations in some detail, is 
useful as a guide for determining what constitutes discriminatory 
conduct by a public entity in testing situations. See 28 CFR 36.309.
    Hotel Reservations. In the NPRM, at Sec.  36.302(e), the 
Department proposed adding specific language to title III addressing 
the requirements that hotels, timeshare resorts, and other places of 
lodging make reasonable modifications to their policies, practices, 
or procedures, when necessary to ensure that individuals with 
disabilities are able to reserve accessible hotel rooms with the 
same efficiency, immediacy, and convenience as those who do not need 
accessible guest rooms. The NPRM did not propose adding comparable 
language to the title II regulation as the Department believes that 
the general nondiscrimination, program access, effective 
communication, and reasonable modifications requirements of title II 
provide sufficient guidance to public entities that operate places 
of lodging (i.e., lodges in State parks, hotels on public college 
campuses). The Department received no public comments suggesting 
that it add language on hotel reservations comparable to that 
proposed for the title III regulation. Although the Department 
continues to believe that it is unnecessary to add specific language 
to the title II regulation on this issue, the Department 
acknowledges that the title III regulation, because it addresses 
hotel reservations in some detail, is useful as a guide for 
determining what constitutes discriminatory conduct by a public 
entity that operates a reservation system serving a place of 
lodging. See 28 CFR 36.302(e).

0
18. Revise the heading to Appendix B to read as follows:

Appendix B to Part 35--Guidance on ADA Regulation on Nondiscrimination 
on the Basis of Disability in State and Local Government Services 
Originally Published July 26, 1991

    Dated: July 23, 2010.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2010-21821 Filed 9-14-10; 8:45 am]
BILLING CODE 4410-14-P