[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Proposed Rules]
[Pages 34465-34508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-12622]



[[Page 34465]]

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Part III





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

Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / 
Proposed Rules

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DEPARTMENT OF JUSTICE

28 CFR Part 35

[CRT Docket No. 105; AG Order No. 2967-2008]
RIN 1190-AA46


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

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) is issuing this notice 
of proposed rulemaking (NPRM) in order to: Adopt enforceable 
accessibility standards under the Americans with Disabilities Act of 
1990 (ADA) that are ``consistent with the minimum guidelines and 
requirements issued by the Architectural and Transportation Barriers 
Compliance Board'' (Access Board); and perform periodic reviews of any 
rule judged to have a significant economic impact on a substantial 
number of small entities, and a regulatory assessment of the costs and 
benefits of any significant regulatory action as required by the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA).
    In this NPRM, the Department proposes to adopt Parts I and III of 
the Americans with Disabilities Act and Architectural Barriers Act 
Accessibility Guidelines (2004 ADAAG), which were published by the 
Access Board on July 23, 2004. Prior to its adoption by the Department, 
the 2004 ADAAG is effective only as guidance to the Department; it has 
no legal effect on the public until the Department issues a final rule 
adopting the revised ADA Standards (proposed standards).
    Concurrently with the publication of this NPRM, the Department is 
publishing an NPRM to amend its title III regulation, which covers 
public accommodations and commercial facilities, in order to adopt the 
2004 ADAAG as its proposed standards for title III entities, to make 
amendments to the title III regulation for consistency with title II, 
and to make amendments that reflect the collective experience of 
sixteen years of enforcement of the ADA.

DATES: All comments must be received by August 18, 2008.

ADDRESSES: Submit electronic comments and other data to http://www.regulations.gov. Address written comments concerning this NPRM to: 
ADA NPRM, P.O. Box 2846, Fairfax, VA 22031-0846. Overnight deliveries 
should be sent to the Disability Rights Section, Civil Rights Division, 
U.S. Department of Justice, located at 1425 New York Avenue, NW., Suite 
4039, Washington, DC 20005. All comments will be made available for 
public viewing online at http://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, 
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 at the 
number listed above.

SUPPLEMENTARY INFORMATION:

Electronic Submission and Posting of Public Comments

    You may submit electronic comments to http://www.regulations.gov. 
When submitting comments electronically, you must include CRT Docket 
No. 105 in the subject box, and you must include your full name and 
address.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http://www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify information 
you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it posted online, you must include the 
phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of 
your comment. You must also prominently identify confidential business 
information to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on http://www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the FOR FURTHER INFORMATION CONTACT paragraph.

Overview

    Throughout this NPRM, the current, legally enforceable ADA 
Standards will be referred to as the ``1991 Standards.'' 28 CFR part 
36, App. A, 56 FR 35544 (July 26, 1991), modified in part 59 FR 2674 
(Jan. 18, 1994). The Access Board's 2004 revised guidelines will be 
referred to as the ``2004 ADAAG.'' 69 FR 44084 (July 23, 2004), as 
amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The 
revisions now proposed in the NPRM, based on the 2004 ADAAG, are 
referred to in the preamble as the ``proposed standards.''
    In performing the required periodic review of its existing 
regulations, the Department has reviewed its title II regulation 
section by section, and, as a result, proposes several clarifications 
and amendments in this NPRM. In addition, the Department's initial, 
formal benefit-cost analysis dealing with the Department's NPRMs for 
both titles II and III is included in this NPRM. See E.O. 12866, 58 FR 
51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26, 
2002), and E.O. 13422, 72 FR 2763 (Jan. 18, 2007); 5 U.S.C. 601, 603, 
610(a); and OMB Circular A-4, http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf. The NPRM was submitted to the Office of Management and 
Budget (OMB), Office of Information and Regulatory Affairs, for review 
and approval prior to publication in the Federal Register.

Purpose

    On July 26, 1990, President George H. W. Bush signed into law the 
Americans with Disabilities Act, 42 U.S.C. 12101 et seq., a 
comprehensive civil rights law prohibiting discrimination on the basis 
of disability. At the beginning of his administration, President George 
W. Bush underscored the nation's commitment to ensuring the rights of 
over 50 million individuals with disabilities nationwide by announcing 
the New Freedom Initiative (available at http://www.whitehouse.gov/infocus/newfreedom). The Access Board's

[[Page 34467]]

publication of the 2004 ADAAG is the culmination of a long-term effort 
to facilitate ADA compliance and enforcement 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 
announcing its intention to adopt standards consistent with Parts I and 
III of the 2004 ADAAG as the ADA Standards for Accessible Design. To 
facilitate this process, the Department is seeking public comment on 
the issues discussed in this notice.

The ADA and Department of Justice Regulations

    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 and, in addition, 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. Under the ADA, the Department is responsible for 
issuing regulations to implement title II and title III of the Act, 
except to the extent that transportation providers subject to title II 
or title III are regulated by the Department of Transportation. Id. at 
12134.
    The Department is also proposing amendments to its title III 
regulation, which prohibits discrimination on the basis of disability 
in public accommodations and commercial facilities, published 
concurrently with the publication of this NPRM, in this issue of the 
Federal Register.
    Title II applies to state and local government entities, and, in 
Subtitle A, protects qualified individuals with disabilities from 
discrimination on the basis of disability in services, programs, and 
activities provided by state and local government entities. Title II 
extends the prohibition of discrimination established by section 504 of 
the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 
504), to all activities of state and local governments regardless of 
whether these entities receive federal financial assistance. 42 U.S.C. 
12131-65.
    On July 26, 1991, the Department issued its final 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 title III 
regulation, at 28 CFR part 36, contains the current 1991 Standards, 
which were based upon the version of ADAAG published by the Access 
Board on the same date. Under the current regulation, title II entities 
are required to comply either with the 1991 Standards or with the 
Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, 
App. A--which many public entities were accustomed to following under 
section 504--with respect to newly constructed or altered facilities.

Relationship to Other Laws

    The Department of Justice regulation implementing title II, 28 CFR 
35.103, provides:

    (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 et seq., 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.

    Nothing in this proposed rule will alter this relationship. 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, 
which prohibits 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, 49 
U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq. 
Compliance with the Department's regulations under the ADA does not 
necessarily ensure compliance with other federal statutes. Public 
entities that are subject both to the Department's regulations and to 
regulations published by other federal agencies must ensure that they 
comply with the requirements of both regulations. If there is a direct 
conflict between the regulations, the regulation that provides greater 
accessibility will prevail. When different statutes apply to entities 
that routinely interact, each entity must follow the regulation that 
specifically applies to it. For example, a public airport is a title II 
facility that houses air carriers subject to the Air Carrier Access Act 
(ACAA). The public airport operator would comply with the title II 
requirements, not with the ACAA requirements. Conversely, the air 
carrier is required to comply with the ACAA, not with the ADA.
    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 that--

    (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, they are not subject to the 
requirements of this part.

    Nothing in this proposed rule alters that provision. 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 regulation of the Department of Transportation (DOT) 
at 49 CFR part 37 and are not covered by this proposed rule. Matters 
not covered by subtitle B are covered by this rule. In addition, 
activities not specifically addressed by DOT's ADA regulation may be 
covered by DOT's regulation implementing section 504 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 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 
thirteen public members appointed by the President, of whom the 
majority must be individuals with disabilities, and the heads of twelve 
federal departments and agencies specified by statute, including the 
heads of the Department of Justice and the Department of 
Transportation. Originally, the Access Board was established to develop 
and maintain accessibility guidelines for federally funded facilities 
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

[[Page 34468]]

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. Id. at 12134, 12186.
    The Department was extensively involved in the development of the 
2004 ADAAG. As a federal member of the Access Board, the Attorney 
General's representative voted to approve the revised guidelines. 
Although the enforceable standards issued by the Department under title 
II and title III must be consistent with the minimum guidelines 
published by the Access Board, it is the responsibility solely of the 
Attorney General to promulgate standards and to interpret and enforce 
those standards.
    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 readily achievable 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 of Justice.

The Revised Guidelines (2004 ADAAG)

    Part I of the 2004 ADAAG provides so-called ``scoping'' 
requirements for facilities subject to the ADA; ``scoping'' is a term 
used in the 2004 ADAAG to describe requirements (set out in Parts I and 
II) that prescribe what elements and spaces--and, in some cases, how 
many of them--must comply with the technical specifications. Part II 
provides scoping requirements for facilities subject to the ABA (i.e., 
facilities designed, built, altered, or leased with federal funds). 
Part III provides uniform technical specifications for facilities 
subject to either statute. This revised format is designed to eliminate 
unintended conflicts between the two 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.
    The revised 2004 ADAAG is the culmination of a ten-year effort to 
improve ADA compliance and enforcement. In 1994, the Access Board began 
the process of updating the original ADAAG by establishing an advisory 
committee composed of members of the design and construction industry, 
the building code community, state and local government entities, and 
individuals with disabilities. In 1999, based largely on the report and 
recommendations of the advisory committee,\1\ the Access Board issued a 
proposed rule to jointly update and revise its ADA and ABA 
accessibility guidelines. 64 FR 62248 (Nov. 16, 1999). In response to 
its rule, 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 throughout the nation. The 
Access Board worked vigorously from the beginning to harmonize the ADA 
and ABA Accessibility Guidelines with industry standards and model 
codes that form the basis for many state and local building codes. 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. By the date of its final publication on July 23, 
2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary 
public participation and review.
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    \1\ After a two-year process of collaboration with the Access 
Board, the Advisory Committee issued its Recommendations for a New 
ADAAG in September 1996, available at http://www.access-board.gov/pubs.htm.
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    In addition, the Access Board amended the ADAAG four times since 
1998. In 1998, it 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). 
Subsequently, the Access Board added specific guidelines on play areas, 
65 FR 62498 (Oct. 18, 2000), and on recreation facilities, 67 FR 56352 
(Sept. 3, 2002).
    These amendments to the ADAAG have not previously been adopted by 
the Department as ADA Standards. Through this NPRM, the Department is 
announcing its intention to publish a proposed rule that will adopt 
revised ADA Standards consistent with the 2004 ADAAG, including all of 
the amendments to the ADAAG since 1998.

The Advance Notice of Proposed Rulemaking

    The Department published an advance notice of proposed rulemaking 
(ANPRM) regarding its ADA regulation on September 30, 2004, 69 FR 
58768, for two reasons: (1) To begin the process of adopting the Access 
Board's 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 OMB Circular A-4, 
http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D 
(Analytical Approaches) and E (Identifying and Measuring Benefits and 
Costs). While underscoring that the Department, as a member of the 
Access Board, had already 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 (like the readily achievable barrier removal requirement applicable 
to existing facilities under title III) is solely within the discretion 
of the Department. The ANPRM dealt with the Department's 
responsibilities under both title II and title III.
    Public response to the ANPRM was extraordinary. 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. Most of the comments responded to questions 
specifically posed by the Department, including issues involving the 
application of the 2004 ADAAG once the Department adopts it, and cost 
information to assist the Department in its regulatory assessment. The 
public provided information on how to assess the cost of compliance by 
small entities, office buildings, hotels and motels, assembly areas, 
hospitals and long-term care facilities, residential units, 
recreational facilities, and play areas. Comments addressed the 
effective date of the proposed standards, the triggering event by which 
the effective date is measured in new construction, and variations on a 
safe harbor, which would excuse elements in compliance with the 1991 
Standards from compliance with the proposed standards. Comments 
responded to questions regarding elements scoped for the ``first time'' 
in the 2004 ADAAG, including detention and correctional facilities, 
recreational facilities and play areas, as well as proposed additions 
to the Department's regulation for items such as free-standing 
equipment.

[[Page 34469]]

Comments also dealt with the specific requirements of the 2004 ADAAG.
    Many commenters requested clarification of or changes to the 
Department's title II regulation. Commenters observed that now, more 
than seventeen years after the enactment of the ADA, as facilities are 
becoming physically accessible to individuals with disabilities, the 
Department needs to focus on second-generation issues that ensure 
individuals with disabilities actually gain access to the accessible 
elements. So, for example, commenters asked the Department to focus on 
such issues as ticketing in assembly areas and reservations of boat 
slips. The public asked about captioning and the division of 
responsibility between the Department and the Access Board for fixed 
and non-fixed (or free-standing) equipment. Finally, commenters asked 
for clarification on some issues in the existing regulations, such as 
title III's requirements regarding service animals.
    All of the issues raised in the public comments are addressed, in 
turn, in this NPRM or in the NPRM for title III. Issues involving title 
III of the ADA, such as readily achievable barrier removal, are 
addressed in the NPRM for title III, published concurrently with this 
NPRM in this issue of the Federal Register.

Background (SBREFA, Regulatory Flexibility Act, and Executive Order) 
Reviews

    The Department must provide two types of assessments as part of its 
NPRM: an analysis of the benefits and costs of adopting the 2004 ADAAG 
as its proposed standards, 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. E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by 
E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan. 
18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4; and E.O. 13272, 67 FR 
53461 (Aug. 13, 2002).
    The Department leaves open the possibility that, as a result of the 
receipt of comments on an issue raised by the 2004 ADAAG, or if the 
Department's Regulatory Impact Analysis reveals that the costs of 
making a particular feature or facility accessible are disproportionate 
to the benefits to persons with disabilities, the Attorney General, as 
a member of the Access Board, may return the issue to the Access Board 
for further consideration of the particular feature or facility. In 
such a case, the Department would delay adoption of the accessibility 
requirement for the particular feature or facility in question in its 
final rule and await Access Board action before moving to consider any 
final action.
    Regulatory Impact Analysis. An initial regulatory impact analysis 
of the benefits and costs of a proposed rule is required by Executive 
Order 12866 (as amended by Executive Order 13258 and Executive Order 
13422). A full benefit-cost analysis is required of any regulatory 
action that is deemed to be significant--that is, a regulation that 
will have an annual effect of $100 million or more on the economy. See 
OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 
603, as amended by the SBREFA, 5 U.S.C. 610(a).
    Early in the rulemaking process, the Department concluded that the 
economic impact of its adoption of the 2004 ADAAG as proposed standards 
for title II and title III was likely to exceed the threshold for 
significant regulatory actions of $100 million. The Department has 
completed its initial regulatory impact analysis measuring the 
incremental benefits and costs of the proposed standards; the initial 
regulatory impact analysis is addressed at length with responses to 
public comments from the ANPRM in Appendix B.
    The public may notice differences between the Department's 
regulatory impact analysis and the Access Board's regulatory assessment 
of the 2004 ADAAG. The differences in framework and approach result 
from the differing postures and responsibilities of the Department and 
the Access Board. First, the breadth of the proposed changes assessed 
in Appendix A of this NPRM is greater than in the Access Board's 
assessments related to the 2004 ADAAG. Unlike the Access Board, the 
Department must examine the effect of the proposed standards not only 
on newly constructed or altered facilities, but also on existing 
facilities. Second, whereas the Access Board issued separate rules for 
many of the differences between the 1991 Standards and the 2004 ADAAG 
(e.g., play areas and recreation facilities), the Department is 
proposing to adopt several years of revisions in a single rulemaking.
    According to the Department's initial Regulatory Impact Analysis 
(``RIA''), it is estimated that the incremental costs of the proposed 
requirements for each of the following eight existing elements will 
exceed monetized benefits by more than $100 million when using the 1991 
Standards as the comparative baseline: 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. 
However, this baseline figure does not take into account the fact that, 
since 1991, various model codes and consensus standards--such as the 
model International Building Codes (``IBC'') published by the 
International Codes Council and the consensus accessibility standards 
developed by the American National Standards Institute (``ANSI'')--have 
been adopted by a majority of states (in whole or in part) and that 
these codes have provisions mirroring the substance of the Department's 
proposed regulations. Indeed, such regulatory overlap is intentional 
since harmonization among federal accessibility standards, state and 
local building codes, and model codes is one of the goals of the 
Department's rulemaking efforts.
    Even though the 1991 Standards are an appropriate baseline to 
compare the new requirements against, since they represent the current 
set of uniform federal regulations governing accessibility, in practice 
it is likely that many public and private facilities across the country 
are already being built or altered in compliance with the Department's 
proposed alterations standards with respect to these elements. Because 
the model codes are voluntary, public entities often modify or carve 
out particular standards when adopting them into their laws, and even 
when the standards are the same, local officials often interpret them 
differently. The mere fact that a state or local government has adopted 
a version of the IBC does not necessarily mean that facilities within 
that jurisdiction are legally subject to its accessibility provisions. 
Because of these complications, and the inherent difficulty of 
determining which baseline is the most appropriate for each provision, 
the RIA accompanying this rulemaking compares the costs and benefits of 
the proposed requirements to several alternative baselines, which 
reflect various versions of existing building codes. In addition, since 
the Department is soliciting comment on these eight particular 
provisions with high net costs, the Department believes it is useful to 
further discuss the potential impact of alternative baselines on these 
particular provisions.

[[Page 34470]]

    For example, the Department's proposed standards for existing 
stairs and elevators have identical counterparts in one or more IBC 
versions put in place before the 2004 ADAAG (2000 or 2003). Please 
note, however, that the IBC 2006 version bases a number of its 
provisions on guidelines in the 2004 ADAAG. These IBC versions, in 
turn, have been adopted collectively by forty-six (46) states and the 
District of Columbia on a statewide basis. In the four (4) remaining 
states (Colorado, Delaware, Illinois, and Mississippi), while IBC 
adoption is left to the discretion of local jurisdictions, the vast 
majority of these local jurisdictions have elected to adopt IBC as 
their local code. Thus, given that nearly all jurisdictions in the 
country currently enforce a version of the IBC as their building code, 
and to the extent that the IBC building codes may be settled in this 
area and would not be further modified to be consistent if they differ 
from the final version of these regulations, the incremental costs and 
benefits attributable to the Department's proposed regulations 
governing alterations to existing stairs and elevators may be less 
significant than the RIA suggests over the life of the regulation.
    In a similar vein, consideration of an alternate IBC/ANSI baseline 
would also likely lower the incremental costs and benefits for five 
other proposed standards (side reach; water closet clearances in 
single-user toilet rooms with in-swinging doors; location of accessible 
routes to stages; accessible attorney areas and witness stands; and 
assistive listening systems), albeit to a lesser extent. Each of these 
proposed standards has a counterpart in either Chapter 11 of one or 
more versions of the IBC, ANSI A117.1, or a functionally equivalent 
state accessibility code. While IBC Chapter 11 and ANSI A117.1 have yet 
not been as widely adopted as some other IBC chapters, the RIA 
nonetheless still estimates that between 15% and 35% of facilities 
nationwide are already covered by IBC/A117.1 provisions that mirror 
these five proposed standards. It is thus expected that the incremental 
costs and benefits for these proposed standards may also be lower than 
the costs and benefits relative to the 1991 Standards baseline.
    Question 1: The Department believes it would be useful to solicit 
input from the public to inform us on the anticipated costs or benefits 
for certain requirements. The Department therefore invites comment as 
to what actual costs and benefits would be for these eight existing 
elements, in particular as applied to alterations, in compliance with 
the proposed regulations (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), as well 
as additional practical benefits from these requirements, which are 
often difficult to adequately monetize.
    The Department does not have statutory authority to modify the 2004 
ADAAG; instead, the ADA requires the Attorney General to issue 
regulations implementing the ADA that are ``consistent with'' the ADA 
Accessibility Guidelines issued by the Access Board. See 42 U.S.C. 
12134(c), 12186(c). As noted above in other parts of this preamble, the 
Department leaves open the possibility of seeking further consideration 
by the Access Board of particular issues raised by the 2004 ADAAG based 
on disproportionate costs and compared to benefits and public comments. 
The Access Board did not have the benefit of our RIA or public comment 
on our RIA as it pertains to the 2004 ADAAG.
    Question 2: The Department would welcome comment on whether any of 
the proposed standards for these eight areas (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) 
should be raised with the Access Board for further consideration, in 
particular as applied to alterations.
    Stages. The proposed requirement to provide direct access to stages 
represents an effort to ensure that individuals with disabilities are 
able to participate in programs in an integrated setting. Under the 
current 1991 Standards, a compliant accessible route connecting seating 
locations to performing areas is permitted to go outside the assembly 
area and make use of an indirect interior accessible route to access 
the stage area. As a result, even when other audience members are able 
to access a stage directly via stairs in order to participate in 
ceremonies, skits, or other interactive on-stage events, persons with 
mobility disabilities may be required to use an inconvenient indirect 
entrance to the stage. As graduates or award recipients, they may be 
required to part company with their peers, to make their way to the 
stage alone, and to make a conspicuous entrance. To address this 
situation, the proposed requirement mandates that, when a direct 
circulation path (for audience members) connects the seating area to a 
stage, the accessible route to the stage must also be direct.
    The Department has generally determined that the overall costs for 
this requirement are relatively high in the alterations context, due to 
the expense of having to provide a lift or ramp to access the stage 
area directly, regardless of which baseline is used for the analysis. 
The Department, however, has had difficulty in estimating the real 
costs of this requirement because of a lack of information about 
whether colleges, elementary and secondary schools, and entertainment 
venues now routinely provide such access when they are altering 
existing auditoriums or how frequently such alterations occur. Also, 
the Department currently lacks sufficient data or other sources with 
which to quantify the benefits that accrue to students and other 
persons with disabilities who, as a result of direct access to stages, 
would be able to participate fully and equally in graduation exercises 
and other events.
    Question 3: The Department would welcome information from operators 
of auditoriums on the likelihood that their auditoriums will be altered 
in the next fifteen years, and, if so, whether such alterations are 
likely to include accessible and direct access to stages. In addition, 
the Department would like specific information on whether, because of 
local law or policy, auditorium operators are already providing a 
direct accessible route to their stages. (The Department is also 
interested in whether having to provide a direct access to the stage 
would encourage operators of auditoriums to postpone or cancel the 
alterations of their facilities.) The Department also seeks information 
on possible means of quantifying the benefits that accrue to persons 
with disabilities from this proposed requirement or on its importance 
to them. To the extent that such information cannot be quantified, the 
Department welcomes examples of personal or anecdotal experience that 
illustrate the value of this requirement.
    The Department's RIA also estimates significant costs, regardless 
of the baseline used, for the proposed requirement that court 
facilities must provide an accessible route to a witness stand or 
attorney area and clear floor space to accommodate a wheelchair. These 
costs arise both in the new construction and alteration contexts. If 
the witness stand is raised, then either a ramp or lift must be 
provided to ensure access to the witness stand. While the RIA 
quantifies the benefits for

[[Page 34471]]

this proposed requirement (as it does for all of the proposed 
requirements) primarily in terms of time savings, the Department fully 
appreciates that such a methodology does not capture the intangible 
benefits that accrue when persons with mobility disabilities are able 
to participate in the court process as conveniently as any other 
witness or party. Without access to the witness stand, for example, a 
wheelchair user, or a witness who uses other mobility devices such as a 
walker or crutches, may have to sit at floor level. If the witness with 
a mobility disability testifies from a floor level position, the 
witness could be placed at a disadvantage in communicating with the 
judge and jury, who may no longer be able to see the witness as easily, 
or, potentially, at all. This may create a reciprocal difficulty for 
the judge and jurors who lose the sightline normally provided by the 
raised witness stand that enables them to see and hear the witness in 
order to evaluate his or her demeanor and credibility--difficulty that 
redounds to the detriment of litigants themselves and ultimately our 
system of justice.
    Question 4: The Department welcomes comment on how to measure or 
quantify the intangible benefits that would accrue from accessible 
witness stands. We particularly invite anecdotal accounts of the 
courtroom experiences of individuals with disabilities who have 
encountered inaccessible witness stands, as well as the experiences of 
state and local governments in making witness stands accessible, either 
in the new construction or alteration context.
    Under the 1991 Standards, Assistive Listening Systems (``ALS'') are 
required in courtrooms and in other settings where audible 
communication is integral to the use of the space and audio 
amplification systems are provided for the general audience. However, 
these Standards do not set forth technical specifications for such 
systems. Since 1991, advancements in ALS and the advent of digital 
technologies have made these systems more amenable to uniform technical 
specifications. In keeping with these technological advancements, the 
revised requirements create a technical standard that, among other 
things, ensures that a certain percentage of required ALS have hearing-
aid compatible receivers. Requiring hearing-aid compatible ALS enables 
persons who are hard of hearing to hear a speech, a play, a movie, or 
to follow the content of a trial. Without an effective ALS, people with 
hearing loss are effectively excluded from participation because they 
are unable to hear or understand the audible portion of the 
presentation.
    From an economic perspective, the cost of a single hearing-aid 
compliant ALS is not high--about $500 more than a non-compliant 
system--and compliant equipment is readily available on the retail 
market. As estimated in the RIA, the high overall costs for the revised 
technical requirements for ALS are instead driven by the assumption 
that entities with large assembly areas (such as universities, 
stadiums, and auditoriums) will be required to purchase a relatively 
large number of compliant systems. On the other hand, the overall 
scoping for ALS has been reduced in the Department's proposed 
requirement, thus mitigating the cost to covered entities. The proposed 
revision to the technical requirement merely specifies that 25% (or at 
least two) of the required ALS receivers must be hearing-aid 
compatible. The RIA estimates that a significant part of the cost of 
this requirement will come from the replacement of individual ALS 
receivers and system maintenance.
    Question 5: The Department seeks information from arena and 
assembly area administrators on their experiences in managing ALS. In 
order to evaluate the accuracy of the assumptions in the RIA relating 
to ALS costs, the Department welcomes particular information on the 
life expectancy of ALS equipment and the cost of ongoing maintenance.
    The Department's proposed requirements mandate an accessible 
(pedestrian) route that connects all accessible elements within the 
boundary of the golf course and facility, including teeing grounds, 
putting greens, and weather shelters. Requiring access to necessary 
features of a golf course ensures that persons with mobility 
disabilities may fully and equally participate in a recreational 
activity.
    From an economic perspective, the Department's RIA assumes that 
virtually every tee and putting green on an existing course will need 
to be regraded in order to provide compliant accessible (pedestrian) 
routes to these features. However, the Department's proposal also 
excuses compliance with the requirement for an accessible (pedestrian) 
route so long as a ``golf car passage'' (i.e., the path typically used 
by golf cars) is otherwise provided to the teeing ground, putting 
green, or other accessible element on a course. Because it is likely 
that most public and private golf courses in the United States already 
provide golf passages to most or all holes, the actual costs of this 
requirement for owners and operators of existing golf courses should be 
reduced with little or no practical loss in accessibility.
    Question 6: The Department seeks 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 to teeing grounds, 
putting greens, and weather shelters, and, if so, whether they intend 
to avail themselves of the proposed exception.
    Analysis of impact on small entities. The second type of analysis 
that the Department has undertaken is a review of its existing 
regulations for title II and title III in order to consider the impact 
of those regulations on small entities. The review requires agencies to 
consider five factors: (1) The continued need for the rule; (2) the 
nature of complaints or comments received concerning the rule from the 
public; (3) the complexity of the rule; (4) the extent to which the 
rule overlaps, duplicates, or conflicts with other federal rules, and, 
to the extent feasible, with state and local governmental rules; and 
(5) the length of time since the rule has been evaluated or the degree 
to which technology, economic conditions, or other factors have changed 
in the area affected by the rule. 5 U.S.C. 610(b). Based on these 
factors, the agency should 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. Id. at 610(a).
    In performing this review, the Department has gone through its 
regulation section by section, and, as a result, proposes several 
clarifications and amendments in this NPRM. Amendments to its title III 
regulation are proposed in the NPRM for title III published jointly 
with this rule. The proposals reflect the Department's analysis and 
review of complaints or comments from the public as well as changes in 
technology. Many of the proposals 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.

[[Page 34472]]

Organization of This NPRM

    The subsequent sections of this NPRM deal with the Department's 
response to comments and its proposals for changes to its current 
regulation that derive from the required, periodic review that it 
performed. The proposed standards and the Department's response to 
comments regarding the 2004 ADAAG are contained in Appendix A to the 
NPRM. Appendix B to the NPRM contains the Department's initial, formal 
benefit-cost analysis.
    The section of the NPRM entitled, ``General Issues,'' briefly 
introduces topics that are noteworthy because they are new to the title 
II regulation or have been the subject of attention or comment. The 
topics introduced in the general issues section include: Safe harbor, 
service animals, wheelchairs and other power-driven mobility devices, 
effective communication and auxiliary aids, alterations to prison 
cells, and equipment.
    Following the general issues section is the ``Section-By-Section 
Analysis and Response to Comments.'' This section includes a detailed 
discussion of the proposed changes to the text of the title II 
regulation. The section-by-section analysis follows the order of the 
current regulation, except that regulatory sections that remain 
unchanged are not indicated. The discussion within each section 
explains the proposals 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 includes specific questions to 
which the Department requests public response. These questions are 
numbered and italicized so that they are easier for readers to locate 
and reference. The Department emphasizes, however, that the public may 
comment on any aspect of this NPRM and is not required to respond 
solely to questions specifically posed by the Department.
    The Department's proposed changes to the actual regulatory text of 
title II that follow the section-by-section analysis are entitled, 
``Part 35: Nondiscrimination on the Basis of Disability in State and 
Local Government Services.''

General Issues

    This section briefly introduces topics that are noteworthy because 
they are new to the title II regulation or have been the subject of 
considerable attention or comment. Each topic is discussed in greater 
detail subsequently in the section-by-section analysis.
    Safe harbor. One of the most important issues the Department must 
address in proposing to adopt the 2004 ADAAG as its new ADA Standards 
for Accessible Design is the effect that the proposed standards will 
have on existing facilities under title II. This issue was not 
addressed in the 2004 ADAAG because it is outside of the scope of the 
Access Board's authority under the ADA.
    Under title II, program accessibility requires that state and local 
government agencies provide individuals with disabilities with access 
to their programs when ``viewed in their entirety.'' Title II does not 
require structural modifications in all circumstances in order to 
provide program access. As a result of this flexibility, the Department 
believes that the program accessibility requirement as it is codified 
in the current regulation may appropriately mitigate any burdens on 
public entities without additional regulatory safeguards. Nevertheless, 
in order to provide certainty and clarity, the Department is proposing 
a safe harbor for elements in existing facilities that are in 
compliance with either the 1991 Standards or the Uniform Federal 
Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A. This 
proposal is discussed below in Sec.  35.150(b)(2) of the section-by-
section analysis.
    The Department invites comment on whether public entities that 
operate existing facilities with play or recreation areas should be 
exempted from compliance with certain requirements in the 2004 ADAAG. 
Existing facilities would continue to be subject to accessibility 
requirements in existing law, but not specifically to the requirements 
in: (1) The Access Board's supplemental guidelines on play areas, 65 FR 
62498 (Oct. 18, 2000); and (2) the Access Board's supplemental 
guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002). Under 
this scenario, the 2004 ADAAG would apply only to new play areas and 
recreation facilities, and would not govern the accessibility of 
existing facilities as legal requirements. Public entities that operate 
existing facilities with play or recreation areas, pursuant to the 
ADA's requirements to provide equal opportunity for individuals with 
disabilities, may still have the obligation to provide an accessible 
route to the playground, some accessible equipment, and an accessible 
surface for the play area or recreation facility.
    Question 7: Should the Department exempt public entities from 
specific compliance with the supplemental requirements for play areas 
and recreation facilities, and instead continue to determine 
accessibility in these facilities on a case-by-case basis under 
existing law? Please provide information on the effect of such a 
proposal on people with disabilities and public entities.
    Service animals. The Department wishes to clarify the obligations 
of public entities to accommodate individuals with disabilities who use 
service animals. The Department continues to receive a large number of 
complaints from individuals with service animals. It appears, 
therefore, that many covered entities are confused about their 
obligations under the ADA in this area. At the same time, some 
individuals with impairments--who would not be covered as qualified 
individuals with disabilities--are claiming that their animals are 
legitimate service animals, whether fraudulently or sincerely (albeit 
mistakenly), to gain access to the facilities of public entities. 
Another trend is the use of wild or exotic animals, many of which are 
untrained, as service animals. In order to clarify its position and 
avoid further misapplication of the ADA, the Department is proposing 
amendments to its regulation with regard to service animals.
    Minimal protection. In the Department's ADA Business Brief on 
Service Animals, which was published in 2002, the Department 
interpreted the minimal protection language in its definition of 
service animals within the context of a seizure (i.e., alerting and 
protecting a person who is having a seizure). Although the Department 
received comments urging it to eliminate the phrase ``providing minimal 
protection'' from its regulation, the Department continues to believe 
that the language serves the important function of excluding from 
coverage so-called ``attack dogs'' that pose a direct threat to others.
    Guidance on permissible service animals. The existing regulation 
implementing title III defines a ``service animal'' as ``any guide dog, 
signal dog, or other animal.'' At the time the regulation was 
promulgated, the Department believed that leaving the species selection 
up to the discretion of the individual with a disability was the best 
course of action. Due to the proliferation of animal types that have 
been used as ``service animals,'' including wild animals, the 
Department believes that this area needs established parameters. 
Therefore, the Department is proposing to eliminate certain species 
from coverage under the ADA even if the other elements of the 
definition are satisfied.

[[Page 34473]]

    Comfort animals vs. psychiatric service animals. Under the 
Department's present regulatory language, some individuals and entities 
have assumed that the requirement that service animals must be 
individually trained to do work or carry out tasks excluded all persons 
with mental disabilities from having service animals. Others have 
assumed that any person with a psychiatric condition whose pet provided 
comfort to him or her was covered by the ADA. The Department believes 
that psychiatric service animals that are trained to do work or perform 
a task (e.g., reminding its owner to take medicine) for persons 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, or turning on 
lights for persons with Post Traumatic Stress Disorder; interrupting 
self-mutilation by persons with dissociative identity disorders; and 
keeping disoriented individuals from danger.
    The Department is proposing new regulatory text in Sec.  35.104 to 
formalize its position on emotional support or comfort animals, which 
is that ``[a]nimals whose sole function is to provide emotional 
support, comfort, therapy, companionship, therapeutic benefits, or 
promote emotional well-being are not service animals.'' The Department 
wishes to underscore that the exclusion of emotional support animals 
from ADA coverage does not mean that persons with psychiatric, 
cognitive, or mental disabilities cannot use service animals. The 
Department proposes specific regulatory text in Sec.  35.104 to make 
this clear: ``[t]he term service animal includes individually trained 
animals that do work or perform tasks for the benefit of individuals 
with disabilities, including psychiatric, cognitive, and mental 
disabilities.'' This language simply clarifies the Department's 
longstanding position.
    The Department's rule is based on the assumption that the title II 
and title III regulations govern a wider range of public settings than 
the settings that allow for emotional support animals. The Department 
recognizes, however, that there are situations not governed exclusively 
by the title II and title III regulations, particularly in the context 
of residential settings and employment where there may be compelling 
reasons to permit the use of animals whose presence provides emotional 
support to a person with a disability. Accordingly, other federal 
agency regulations governing those situations may appropriately provide 
for increased access for animals other than service animals.
    Proposed training standards. The Department has always required 
that service animals be individually trained to do work or perform 
tasks for the benefit of an individual with a disability, but has never 
imposed any type of formal training requirements or certification 
process. While some advocacy groups have urged the Department to modify 
its position, the Department does not believe that such a modification 
would serve the array of individuals with disabilities who use service 
animals.
    Detailed regulatory text changes and the Department's response to 
public comments on these issues and others are discussed below in the 
definitions Sec.  35.104 and in a newly-proposed Sec.  35.136.
    Wheelchairs and other power-driven mobility devices. Since the 
passage of the ADA, choices of mobility aids available to individuals 
with disabilities have vastly increased. In addition to devices such as 
wheelchairs and mobility scooters, individuals with disabilities may 
use devices that are not designed primarily for use by individuals with 
disabilities, such as electronic personal assistive mobility devices 
(EPAMDs). (The only available model known to the Department is the 
Segway[supreg].) The Department has received complaints and become 
aware of situations where individuals with mobility disabilities have 
utilized riding lawn mowers, golf cars, large wheelchairs with rubber 
tracks, gasoline-powered, two-wheeled scooters, and other devices for 
locomotion in pedestrian areas. These new or adapted mobility aids 
benefit individuals with disabilities, but also present new challenges 
for state and local governments.
    EPAMDs illustrate some of the challenges posed by new mobility 
devices. The basic Segway[supreg] model is a two-wheeled, 
gyroscopically stabilized, battery-powered personal transportation 
device. The user stands on a platform suspended three inches off the 
ground by wheels on each side, grasps a T-shaped handle, and steers the 
device similarly to a bicycle. The EPAMD can travel up to 12\1/2\ miles 
per hour, compared to the average pedestrian walking speed of 3 to 4 
miles per hour and the approximate maximum speed for power-operated 
wheelchairs of 6 miles per hour. In a study of trail and other 
nonmotorized transportation users including EPAMDs, the Federal Highway 
Administration (FHWA) found that the eye height of people using EPAMDs 
ranged from 68\1/4\ inches to 79\1/2\ inches. See Federal Highway 
Administration, Characteristics of Emerging Road and Trail Users and 
Their Safety (Oct. 2004), available at http://www.tfhrc.gov/safety/pubs/04103. Thus, EPAMDs can operate at much greater speeds than 
wheelchairs, and the average user is much taller than most wheelchair 
users.
    EPAMDs have been the subject of debate among users, pedestrians, 
disability advocates, state and local governments, businesses, and 
bicyclists. The fact that a device is not designed primarily for use by 
or marketed primarily to individuals with disabilities, nor used 
primarily by persons with disabilities, complicates the question of 
whether individuals with disabilities should be allowed to operate them 
in areas and facilities where other powered devices are not allowed. 
Those who question the use of EPAMDs 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. 
Although the question of EPAMD safety has not been resolved, many 
states have passed legislation addressing EPAMD operation on sidewalks, 
bicycle paths, and roads. In addition, some states, such as Iowa and 
Oregon, have minimum age requirements, or mandatory helmet laws. New 
Jersey requires helmets for all EPAMD users, while Hawaii and 
Pennsylvania require helmets for users under a certain age.
    While there may be legitimate safety issues for EPAMD users and 
bystanders, EPAMDs and other nontraditional mobility devices can 
deliver real benefits to individuals with disabilities. For example, 
individuals with severe respiratory conditions who can walk limited 
distances and individuals with multiple sclerosis have reported 
benefitting significantly from EPAMDs. Such individuals often find that 
EPAMDs are more comfortable and easier to use than wheelchairs, 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.
    The Department has received questions and complaints from 
individuals with disabilities and covered entities about which mobility 
aids must be accommodated and under what circumstances. While some

[[Page 34474]]

individuals with disabilities support the use of unique mobility 
devices, other individuals with disabilities are concerned about their 
personal safety when others are using such devices. There is also 
concern about the impact of such mobility devices on facilities, such 
as the weight of the device on fragile floor surfaces.
    The Department intends to address these issues and proposes to 
adopt a policy that sets the parameters for when these devices must be 
accommodated. Toward that end, the Department proposes new definitions 
of the terms ``wheelchair''--which includes manually and power-driven 
wheelchairs and mobility scooters--and ``other power-driven mobility 
device'' and accompanying regulatory text. The proposed definitions are 
discussed in the section-by-section analysis of Sec.  35.104, and the 
proposed regulatory text is discussed in the section-by-section 
analysis of Sec.  35.137.
    Much of the debate surrounding mobility aids has centered on 
appropriate definitions for the terms ``wheelchair'' and ``other power-
driven mobility devices.'' The Department has not defined the term 
``manually powered mobility aids.'' Instead, the proposed rule provides 
a list including wheelchairs, walkers, crutches, canes, braces, or 
similar devices. The inclusion of the term ``similar devices'' 
indicates that the list is not intended to be exhaustive. The 
Department would like input as to whether addressing ``manually powered 
mobility aids'' in this manner (i.e., via examples of such devices) is 
appropriate. The Department also would like information as to whether 
there are any other non-powered or manually powered mobility aids that 
should be added to the list and an explanation of the reasons they 
should be included. If an actual definition is preferred, the 
Department would welcome input with regard to the language that might 
be used to define ``manually powered mobility aids,'' and an 
explanation of the reasons this language would better serve the public.
    Effective communication and auxiliary aids. Revised Sec.  35.160(a) 
of the title II regulation requires a public entity to take appropriate 
steps to ensure that communications with individuals with disabilities, 
including applicants, participants, members of the public, and their 
companions, are as effective as communications with others. The 
Department has investigated hundreds of complaints alleging that public 
entities have failed to provide effective communication, many of which 
resulted in settlement agreements and consent decrees. During the 
course of its investigations, the Department has determined that public 
entities sometimes misunderstand the scope of their obligations under 
the statute and the regulation. Moreover, the number of individuals 
with hearing loss continues to grow in this country as a large segment 
of the population ages and as individuals live longer.
    The Department is proposing several changes and additions to 
Sec. Sec.  35.104, 35.160, and 35.161 of the title II regulation to 
address these issues. Among other amendments, these changes update the 
regulatory language in response to numerous technological advances and 
breakthroughs in the area of auxiliary aids and services since the 
regulation was promulgated sixteen years ago. The most significant 
changes relate to video interpreting services (VIS) and the provision 
of effective communication for companions.
    A technology that has emerged since promulgation of the original 
regulation is video interpreting services (VIS), and the Department 
proposes to include it in the regulation. VIS permits an 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. VIS can 
provide immediate, effective access to interpreting services seven days 
a week, twenty-four hours a day in a variety of situations by allowing 
individuals in separate locations to have live, face-to-face 
communications.
    The specific amendments to the section on auxiliary aids and 
services, in addition to the provision of VIS, are described in 
Sec. Sec.  35.104, 35.160, and 35.161 of the section-by-section 
analysis below.
    Alterations to prison cells. The 2004 ADAAG establishes 
requirements for the design and construction of cells in correctional 
facilities. When the Access Board adopted these new requirements, it 
deferred one decision to the Attorney General, specifically: 
``Alterations to cells shall not be required to comply except to the 
extent determined by the Attorney General.'' The unique environment and 
security concerns of a correctional facility present challenges that 
are not an issue in other government buildings, so the Department must 
strike a balance between the accessibility needs of inmates with 
disabilities and the concerns of the prison officials and staff that 
run the facilities. Therefore, 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 alterations 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, since alterations 
within a prison environment often result in piecemeal accessibility. 
Discussion of the proposed options and submitted comments are described 
below in the section-by-section analysis of Sec.  35.152, a newly 
proposed section on matters related to detention and correctional 
facilities.
    Equipment and furniture. Question seven of the ANPRM asked for 
comment on whether regulatory guidance is needed with respect to the 
acquisition and use of mobile, portable, and other free-standing 
equipment or furnishings used by covered entities to provide services, 
and asked for specific examples of situations that should be addressed. 
The ANPRM explained that free-standing equipment was already addressed 
in the regulations in several different contexts, but that since 
covered entities continue to raise questions about the extent of their 
obligation to provide accessible free-standing equipment, the 
Department was considering adding specific language on equipment.
    The Department received comments both in favor and against this 
proposal with a majority of comments in favor of requiring accessible 
equipment and furniture. However, the Department has decided to add no 
new regulatory text with respect to equipment at this time. A few title 
II entities submitted very brief comments, with about half in favor of 
specific requirements for free-standing equipment and half opposed. 
Most individuals and organizations representing individuals with 
disabilities were in favor of adding or clarifying requirements for 
accessible equipment. Disability organizations pointed out that from 
the user's perspective, it is irrelevant whether the equipment (e.g., 
ATMs or vending machines) is free-standing or fixed, since the 
equipment must be accessible in order for them to use it.

[[Page 34475]]

    The Department believes that accessible equipment and furnishings 
are required when appropriate under the existing regulations governing 
modifications of policies, practices, and procedures, and in the 
requirement for program accessibility. 28 CFR 35.130(7); 35.150. In 
addition, some equipment may also be subject to the effective 
communication requirements. 28 CFR 35.160. The existing 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 burden. Section 35.150(b) 
specifies that such entities may meet their obligation to make each 
program accessible to individuals with disabilities through the 
``redesign of equipment.'' Section 35.160(a) requires covered entities 
to provide effective communication to program participants. 
Consequently, providing accessible equipment is required when 
appropriate under the existing regulations. The Department has decided 
to continue with this approach and not to add any specific regulatory 
guidance addressing equipment at this time.
    The 2004 ADAAG includes revised requirements for some types of 
fixed equipment that are specifically addressed in the 1991 Standards, 
such as ATMs and vending machines, as well as detailed requirements for 
fixed equipment that is not addressed by name in the current Standards, 
such as depositories, change machines, and fuel dispensers. Because the 
2004 ADAAG provides detailed requirements for many types of fixed 
equipment, covered entities should consult those requirements in 
determining what steps are appropriate for making free-standing 
equipment accessible. The Department also agrees that when federal 
guidance for accessibility exists for equipment required to be 
accessible to individuals who are blind or have low vision, entities 
should consult such guidance (e.g., federal standards implementing 
section 508 of the Rehabilitation Act, 36 CFR part 1194, or the 
guidelines that specify communication accessibility for ATMs and fare 
card machines in the 2004 ADAAG, 36 CFR part 1191, App. D). The 
Department intends to continue to monitor the use of accessible 
equipment by covered entities and to analyze the economic impact of 
possibly providing more detailed requirements in future regulations 
governing specific types of free-standing equipment.
    Accessible golf cars. Question six of the ANPRM asked whether golf 
courses should be required to make at least one, and possibly two, 
specialized golf cars available for the use of individuals with 
disabilities, with no greater advance notice required to obtain them 
than for use of other golf cars. The Department also asked about the 
golf car's safety and use on golf course greens. Accessible single-user 
golf cars are cars for use by individuals with mobility impairments 
that are driven with hand controls, and from which a person with a 
disability can hit the golf ball while remaining in the seat of the 
car. Some golf cars have a swivel, elevated seat that allows the golfer 
to play from a semi-standing position. These cars can be used by 
individuals without disabilities as well.
    The Department received many comments regarding accessible golf 
cars, with the majority of commenters in favor of requiring accessible 
golf cars. The comments in opposition to requiring accessible golf cars 
came from some individuals and from entities covered by title III. The 
Department has decided to propose no new regulations specific to 
accessible golf cars at this time.
    Many commenters in favor of requiring accessible golf cars noted 
the social aspect of golf, generally, and its specific--albeit 
informal--importance, in many business transactions, thus affecting 
both the social lives and the careers of some individuals with 
disabilities.
    Comments opposed to requiring accessible golf cars generally came 
from individuals and golf course owners and associations covered by 
title III. Some commenters believed that there is little demand for 
accessible golf cars, or that the problem is solved by putting 
``medical'' flags on traditional cars to identify individuals with 
disabilities who are then permitted to drive onto the greens, which 
otherwise would not be permitted. Others stated that accessible golf 
cars were too expensive or were specialized equipment that individuals 
with disabilities should purchase for themselves. One city 
representative commented that courses that do not provide golf cars 
should not be required to provide accessible golf cars.
    Safety and the impact on golf course grounds were other areas 
addressed by the comments. Again, opinions were divided. Some 
commenters said that the single-user golf cars are safe, do not damage 
the greens, and speed up the pace of play. Others argued that the cars 
should pass the American National Standards Institute (ANSI) standards 
\2\ for traditional golf cars, and that the single-user cars should not 
be required until there are safety standards for these cars.
---------------------------------------------------------------------------

    \2\ ANSI Z130.1-1999.
---------------------------------------------------------------------------

    Other concerns raised by public comments were the effect of 
allowing accessible golf car use on the greens and their impact on 
maintenance of the course. Some commenters suggested that the cars 
would damage the greens and that the repair costs would be more 
significant than for traditional golf cars. In addition, one commenter 
suggested that courses exceeding certain slope and degree standards be 
exempted from having single-user cars because of safety concerns. 
Comments from golf courses that have provided accessible golf cars were 
generally positive in terms of safety and maintenance of the course. 
Further, courses that provide accessible cars do not report any safety 
issues or more than minimal damage to the greens.
    With respect to making golf cars available, most supporters of 
providing accessible golf cars believe that no advance notice should be 
required to reserve the golf cars. One association supported requiring 
golf courses to have accessible cars with advance notice, which could 
be achieved through pooling arrangements with other courses. Some 
commenters explained that at least two cars per course should be 
required so that golfers with disabilities can play together.
    Commenters also addressed whether courses that provide no cars at 
all should provide accessible cars. Some commenters supported requiring 
every golf course, whether or not it provides traditional golf cars, to 
provide accessible cars because individuals with disabilities will not 
be able to play without an accessible car.
    The Department has decided not to add a regulation specifically 
addressing accessible golf cars at this time. The existing regulation, 
which requires that entities operate each service, program, or activity 
so that, when viewed in its entirety, the service, program, or activity 
is readily accessible to and usable by individuals with disabilities, 
subject to a defense of fundamental alteration or undue burden, will 
continue to govern this issue. 28 CFR 35.150(a).
    The Department is aware that the Department of Defense has recently 
undertaken an extensive study of the accessibility of golf courses 
operated for military personnel. As a result of its study, the 
Department of Defense plans to provide two accessible golf cars at each 
of the 174 golf courses that the Department of Defense operates, except 
those at which it would be unsafe to operate such golf cars because of 
the terrain of the course. See U.S. Department of Defense, Report to

[[Page 34476]]

Congress: Access of Disabled Persons to Morale, Recreation, and Welfare 
(MRW) Facilities and Activities (Sept. 25, 2007). The Department of 
Justice plans to study the Defense Department's implementation of its 
plan to determine if it provides an effective framework for ensuring 
golf course accessibility.

Section-by-Section Analysis and Response to Comments

    This section provides a detailed description of the Department's 
proposed changes to the title II regulation, the reasoning behind the 
proposals, and responses to public comments received on the topic. The 
section-by-section analysis follows the order of the current title II 
regulation, except that if the Department is not proposing a change to 
a regulation section, the unchanged section is not discussed. In 
addition, this section includes specific questions for which the 
Department requests public response. These questions are numbered and 
italicized in order to make them easier for readers to locate and 
reference.

Subpart A--General

Section 35.104 Definitions

``1991 Standards'' and ``2004 ADAAG''
    The Department is proposing to add to the proposed regulation 
definitions of both the ``1991 Standards'' and the ``2004 ADAAG.'' The 
term ``1991 Standards'' refers to the currently enforceable ADA 
Standards for Accessible Design, codified at 28 CFR part 36, App. A. 
The term ``2004 ADAAG'' refers to Parts I and III of the Americans with 
Disabilities Act and Architectural Barriers Act Accessibility 
Guidelines, which were issued by the Architectural and Transportation 
Barriers Compliance Board on July 23, 2004, at 69 FR 44084 (to be 
codified at 36 CFR 1191), and which the Department is proposing to 
adopt in this NPRM. These terms are included in the definitions section 
for ease of reference.
``Auxiliary Aids and Services''
    Several types of auxiliary aids that have become more readily 
available have been added to Sec.  35.104 under the definition of 
auxiliary aids and services.
    For purposes of clarification, the Department has added the 
exchange of written notes as an example of an auxiliary aid or service. 
This common-sense example is a codification of the Department's 
longstanding policy with regard to title III entities. See The 
Americans with Disabilities Act, Title III Technical Assistance Manual, 
Covering Public Accommodations and Commercial Facilities (Title III TA 
Manual), III-4.300, available at http://www.ada.gov/taman3.html. The 
title III definition of auxiliary aids and services provided the 
framework for the same definition in title II. See 56 FR 35544, 35565 
(July 26, 1991) and 56 FR 35694, 35697 (July 26, 1991). This additional 
example of an appropriate auxiliary aid and service was inserted 
because many public entities do not realize that this easy and 
efficient technique is available to them. While the exchange of written 
notes is inappropriate for lengthy or complicated communications, it 
can be appropriate for situations such as routine requests for written 
information, for a police officer issuing a speeding ticket, or as a 
means of communication while awaiting the arrival of an interpreter.
    Also in paragraph (1) of the definition, the Department has 
replaced the term ``telecommunications devices for deaf persons (TDD)'' 
with ``text telephones (TTYs).'' Although ``TDD'' is the term used in 
the ADA, the use of ``TTY'' has become the commonly accepted term and 
is consistent with the terminology used by the Access Board in the 2004 
ADAAG. The Department has also included in paragraph (1) ``accessible 
electronic and information technology'' as another example of auxiliary 
aids and services. Lastly, ``computer-aided'' has been added to 
describe ``transcription services'' to make it consistent with title 
III.
    The Department has added to paragraph (1) a new technology, video 
interpreting services (VIS), which consists of a video phone, video 
monitors, cameras, a high speed Internet connection, and an 
interpreter. VIS is specifically discussed below in the proposed 
definition of VIS.
    In paragraph (2) of the definition, the Department proposes to 
insert additional examples of auxiliary aids and services for 
individuals who are blind or have low vision. The preamble to the 
original regulation makes clear that the original list in the 
regulation 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.'' See 56 
FR 35694, 35697 (July 26, 1991). Because technological advances in the 
seventeen years since the ADA was enacted have increased the range of 
auxiliary aids and services for those who are blind or have low vision, 
the Department has added additional examples, including brailled 
displays, screen reader software, magnification software, optical 
readers, secondary auditory programs (SAP), and accessible electronic 
and information technology.
``Direct Threat''
    In the Department's proposed Sec.  35.136(b)(3), a service animal 
may be removed from the premises of a public entity if the animal poses 
a direct threat to the health or safety of others that cannot be 
eliminated by reasonable modifications. Direct threat is not defined in 
title II, but it is defined in Sec.  36.208(b) of the current title III 
regulation as ``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.'' The 
Department proposes taking the definition from its current location in 
title III and placing it in the definitions section in both title II 
(Sec.  35.104) and title III (Sec.  36.104).
``Existing Facility''
    Under the ADA, a facility may be one or more of three types at 
different points in time: (1) An existing facility, (2) an altered 
facility, or (3) a newly designed and constructed facility. In the 
current regulation, title II defines new construction at Sec.  
35.151(a) and alterations at Sec.  35.151(b). In contrast, the term 
``existing facility'' is not defined although it is used in the statute 
and in the regulations for titles II and III. 42 U.S.C. 
12182(b)(2)(A)(iv); 28 CFR 35.150.
    The Department's enforcement of the ADA is premised on a broad 
understanding of ``existing facilities.'' The classifications of 
facilities under the ADA regulation are not static. Rather, a building 
that was newly designed and constructed at one time--and, therefore, 
subject to the accessibility standards in effect at the time--becomes 
an ``existing facility'' after it is completed. At some point in its 
life, it may also be considered ``altered'' and then again become 
``existing.''
    The added definition of ``existing facility'' in the proposed 
regulation clarifies that the term means exactly what it says: A 
facility in existence on any given date is an existing facility under 
the ADA. If a facility exists, it is an existing facility whether it 
was built in 1989, 1999, or 2009. Of course, if the construction of a 
facility at issue begins after the triggering dates for the new 
construction standards, then the facility is subject to the new 
construction standards, and if it is altered, it is subject to the 
alterations standards.

[[Page 34477]]

``Other Power-Driven Mobility Device''
    The proposed regulation defines the term ``other power-driven 
mobility device'' 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) (e.g., Segway[supreg]), or any mobility aid designed 
to operate in areas without defined pedestrian routes.'' The definition 
is designed to be broad and inclusive because the Department recognizes 
the diverse needs and preferences of individuals with disabilities and 
does not wish to impede individual choice except when necessary. Power-
driven mobility devices are included in this category. Mobility aids 
that are designed for areas or conditions without defined pedestrian 
areas, such as off-road bike paths, roads (except where allowed by law 
or where a sidewalk is not provided), freeways, or natural surfaces 
such as beaches where there is not a defined circulation route for 
pedestrians, are also included in this category.
    Question 8: Please comment on the proposed definition of other 
power-driven mobility devices. Is the definition overly inclusive of 
power-driven mobility devices that may be used by individuals with 
disabilities?
    The Department's proposed regulatory text on accommodating 
wheelchairs and other power-driven mobility devices is discussed below 
in Sec.  35.137 of the section-by-section analysis.
``Proposed Standards''
    The Department has added the term ``proposed standards'' to mean 
the 2004 ADAAG as revised or amended by the Department in this 
rulemaking. The full text of the 2004 ADAAG is available for review at 
http://www.access-board.gov along with a detailed comparison of the 
1991 Standards and the 2004 ADAAG that identifies the differences 
between the two documents.
``Qualified Interpreter''
    The Department proposes to add 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.
    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. Also, someone with just a 
rudimentary familiarity with sign language or finger spelling is not a 
qualified sign language interpreter. Likewise, a qualified sign 
language interpreter would not include someone who is fluent in sign 
language but unable to translate spoken communication into ASL or to 
translate signed communication into spoken words.
    The revised definition includes examples of different types of 
interpreters. An oral interpreter has special skill and training to 
mouth a speaker's words silently for individuals who are deaf or hard 
of hearing, many of whom were raised orally and were taught to read 
lips or were diagnosed with hearing loss later in life and do 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, 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.
``Qualified Reader''
    The current regulation identifies a qualified reader as an 
auxiliary aid, but it does 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 
proposes 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. Failing to provide a qualified reader 
to a person with a disability could amount to discrimination based upon 
disability.
``Service Animal''
    Although there is no specific language in the current 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 to avoid discrimination on the basis of 
disability, unless the modifications would fundamentally alter the 
nature of the service, program, or activity. 28 CFR 35.130(b)(7). In 
order to qualify for coverage under title II, a person must be a 
``qualified individual with a disability,'' which is defined as ``an 
individual with a disability who, with or without reasonable 
modifications to rules, policies, or practices, the removal of 
architectural, communication, or transportation barriers, or the 
provision of auxiliary aids and services, meets the essential 
eligibility requirements for the receipt of services or the 
participation in programs or activities provided by a public entity.'' 
28 CFR 35.104. The Department is proposing to add to the title II 
regulation the same definition of ``service animal'' that it will 
propose for the title III regulation. The title III regulation 
currently contains a definition of ``service animal'' in Sec.  36.104.
    The current definition of ``service animal'' in Sec.  36.104 is, 
``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.'' The Department would 
modify that current definition, and add the same definition, as 
modified, to the title II regulation at Sec.  35.104. The changes that 
would be made to the title III definition, and that would be 
incorporated in the title II definition are as follows:
    1. Remove ``guide'' or ``signal'' as descriptions of types of 
service dogs, add ``other common domestic'' animal, and add 
``qualified'' to ``individual'' in the Department's current definition;
    2. Remove ``individuals with impaired vision'' and replace it with 
``individuals who are blind or have low vision;''
    3. Change ``individuals with impaired hearing'' to ``individuals 
who are deaf or hard of hearing;''
    4. Replace the term ``intruders'' with the phrase ``the presence of 
people'' in the section on alerting individuals who are deaf or hard of 
hearing;
    5. Add the following to the list of work and task examples: 
Assisting an individual during a seizure, retrieving medicine or the 
telephone, providing physical support to assist with balance and 
stability to individuals with mobility disabilities, and assisting 
individuals, including those with cognitive disabilities, with 
navigation;
    6. Add that ``service animal'' includes individually trained 
animals that do work or perform tasks for the benefit of individuals 
with disabilities, including psychiatric, cognitive, or mental 
disabilities;
    7. Add that ``service animal'' does not include wild animals 
(including nonhuman primates born in captivity),

[[Page 34478]]

reptiles, rabbits, farm animals (including any breed of horse, pony, 
miniature horse, pig, and goat), ferrets, amphibians, and rodents; and
    8. Add that animals whose sole function is to provide emotional 
support, comfort, therapy, companionship, therapeutic benefits, or 
promote emotional well-being are not service animals.
    The Department is proposing these changes in response to concerns 
expressed by commenters regarding the Department's ANPRM. Issues raised 
by the commenters include:
    ``Minimal protection.'' There were many comments by service dog 
users urging the Department to remove from the definition the phrase 
``providing minimal protection.'' The commenters set forth the 
following reasons for why the phrase should be deleted: (1) The current 
phrase can be interpreted to apply coverage under the ADA to 
``protection dogs'' that are trained to be aggressive and protective, 
so long as they are paired with a person with a disability; and (2) 
since some view the minimal protection language to mean that a dog's 
very presence can act as a crime deterrent, the language may be 
interpreted to allow any untrained pet dog to provide minimal 
protection by its mere presence. These interpretations were not 
contemplated by the ADA.
    Question 9: Should the Department clarify the phrase ``providing 
minimal protection'' in the definition or remove it? Are there any 
circumstances where a service animal providing ``minimal protection'' 
would be appropriate or expected?
    ``Alerting to intruders.'' Some commenters expressed a similar 
concern regarding the phrase ``alerting * * * to intruders'' in the 
current text as the concern expressed by commenters regarding the 
phrase ``providing minimal protection.'' Commenters indicated that 
``alerting to intruders'' has been misinterpreted by some individuals 
to apply to a special line of protection dogs that are trained to be 
aggressive. People have asserted, incorrectly, that use of such animals 
is protected under the ADA. The Department reiterates that public 
entities are not required to admit any animal that poses a direct 
threat to the health or safety of others. The Department has proposed 
removing ``intruders'' and replacing it with ``the presence of 
people.''
    ``Task'' emphasis. Many commenters followed the lead of an umbrella 
service dog organization and suggested that the phrase ``performing 
tasks'' should form the basis of the service animal definition, that 
``do work'' should be eliminated from the definition, and that 
``physical'' should be added to describe tasks. Tasks by their nature 
are physical, so the Department does not believe that such a change is 
warranted. In contrast, the existing phrase ``do work'' is slightly 
broader than ``perform tasks,'' and adds meaning to the definition. For 
example, a psychiatric service dog can help some individuals with 
dissociative identity disorder to remain grounded in time or place. As 
one service dog user stated, 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. One 
commenter stated that the current definition works for everyone (i.e., 
those with physical and mental disabilities) and urged the Department 
to keep it. The Department has evaluated this issue and believes that 
the crux of the current definition (individual training to do work or 
perform tasks) is inclusive of the varied services provided by working 
animals on behalf of individuals with all types of disabilities and 
proposes that this portion of the definition remain the same.
    Define ``task.'' One commenter suggested defining the term 
``task,'' presumably so that there would be a better understanding of 
what type of service performed by an animal would qualify for coverage. 
The Department feels that the common definition of task is sufficiently 
clear and that it is not necessary to add the term to the definitions 
section; however, the Department has proposed additional examples of 
work or tasks to help illustrate this requirement in the definition of 
service animal.
    Define ``animal'' or what qualifies certain species as ``service 
animals.'' When the regulation was promulgated in 1991, the Department 
did not define the parameters of acceptable animal species, and few 
anticipated the variety of animals that would be used in the future, 
ranging from pigs and miniature horses to snakes and iguanas. One 
commenter suggested defining ``animal'' (in the context of service 
animals) or the parameters of acceptable species to reduce the 
confusion over whether a particular service animal is covered. One 
service dog organization commented that other species would be 
acceptable if those animals could meet the behavioral standards of 
trained service dogs. Other commenters asserted that there are certain 
animals (e.g., reptiles) that cannot be trained to do work or perform 
tasks, so these animals would not be covered. The Department has 
followed closely this particular issue (i.e., how many unusual animals 
are now claimed as service animals) and believes that this aspect of 
the regulation needs clarification.
    To establish a practical and reasonable species parameter, the 
Department proposes to narrow the definition of acceptable animal 
species to ``dog or other common domestic animal'' by excluding the 
following animals: Wild animals (including nonhuman primates born in 
captivity), reptiles, rabbits, farm animals (including any breed of 
horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and 
rodents. Many commenters asserted that limiting the number of allowable 
species would help stop erosion of the public's trust, which results in 
reduced access for many individuals with disabilities, despite the fact 
that they use trained service animals that adhere to high behavioral 
standards. The Department is compelled to take into account practical 
considerations of certain animals and contemplate their suitability in 
a variety of public contexts, such as libraries or courtrooms.
    In addition, the Department believes that it is necessary to 
eliminate from coverage all wild animals, whether born or bred in 
captivity or the wild. Some animals, such as nonhuman primates, pose a 
direct threat to safety based on behavior that can be aggressive and 
violent without notice or provocation. The American Veterinary Medical 
Association (AVMA) issued a position statement against the use of 
monkeys as service animals, stating, ``[t]he AVMA does not support the 
use of nonhuman primates as assistance animals because of animal 
welfare concerns, the potential for serious injury, and zoonotic 
[animal-to-human disease transmission] risks.'' See the AVMA 2005 
position statement, Nonhuman Primates as Assistance Animals, available 
at http://www.avma.org/issues/policy/nonhuman_primates.asp. The 
potential for nonhuman primates to transmit dangerous diseases to 
humans has been documented in scientific journals.
    Although unusual species make up a very small percentage of service 
animals as a collective group, their use has engendered broad public 
debate and, therefore, the Department seeks comment on this issue.
    Question 10: Should the Department eliminate certain species from 
the definition of ``service animal''? If so, please provide comment on 
the Department's use of the phrase ``common domestic animal'' and on 
its choice of which types of animals to exclude. 

[[Page 34479]]

    Question 11: Should the Department impose a size or weight 
limitation for common domestic animals, even if the animal satisfies 
the ``common domestic animal'' prong of the proposed definition?
    Comfort animals. It is important to address the concept of comfort 
animals or emotional support animals, which have become increasingly 
popular. The increased use of comfort animals is primarily by 
individuals with mental or psychiatric impairments, many of which do 
not rise to the level of disability. Comfort animals are also used by 
individuals without any type of impairment who claim the need for such 
an animal in order to bring their pets into facilities of public 
entities.
    The difference between an emotional support animal and a 
psychiatric service animal is the service that is provided, i.e., the 
actual work or task performed by the service animal. Another critical 
factor rests on the severity of the individual's impairment. For 
example, only individuals with conditions that substantially limit them 
in a major life activity qualify for coverage under the ADA, and only 
those individuals' use of a service animal will be covered under the 
ADA. See definition of disability, 42 U.S.C. 12102(2) and 28 CFR 
35.104. Major life activities include functions such as caring for 
one's self, performing manual tasks, walking, seeing, hearing, 
speaking, breathing, learning, and working. Many Americans have some 
type of physical or mental impairment (e.g., arthritis, anxiety, back 
pain, imperfect vision, etc.), but establishing a physical or mental 
disability also requires a substantial limitation of a major life 
activity. Traditionally, service dogs worked as guides for individuals 
who were blind or had low vision. Since the original regulations were 
promulgated, service animals have been trained to assist individuals 
with different types of disabilities. As a result, individuals with 
minor impairments may mistakenly conclude that any type of impairment 
qualifies them for ADA coverage.
    Change ``service animal'' to ``assistance animal.'' Some commenters 
asserted that ``assistance animal'' is a term of art and should replace 
``service animal.'' While some agencies, like the Department of Housing 
and Urban Development (HUD), use the term ``assistance animal,'' that 
term is used to denote a broader category of animals than is covered by 
the ADA. The Department believes that changing the term used under the 
ADA would create confusion, particularly in view of the broader 
parameters for coverage under the Fair Housing Act (FHA) (cf., HUD 
Handbook No. 4350.3 Rev-1, Chg-2, Occupancy Requirements of Subsidized 
Multifamily Housing Programs (June 2007), available at http://www.hudclips.org.) Moreover, the Department's proposal to change the 
definition of ``service animal'' under the ADA is not intended to 
affect the rights of people with disabilities who use assistance 
animals in their homes under the FHA.
    In addition, the term ``psychiatric service animal'' describes a 
service animal that does work or performs a task for the benefit of an 
individual with a psychiatric disability. This contrasts with 
``emotional support'' animals that are covered under the Air Carrier 
Access Act, 49 U.S.C. 41705 et seq., and its implementing regulations, 
14 CFR 382.7, see also 68 FR 24874, 24877 (May 9, 2003) (guidance on 
accommodation of service animals and emotional support animals on air 
transportation) and qualify as ``assistance animals'' under the FHA, 
but do not qualify as ``service animals'' under the ADA.
``Video Interpreting Services (VIS)''
    The Department has added a definition of video interpreting 
services (VIS), 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.
    VIS can provide immediate, effective access to interpreting 
services seven days a week, twenty-four hours a day by allowing people 
in different locations to engage in live, virtual face-to-face 
communications. Moreover, VIS is particularly helpful where qualified 
interpreters are not readily available (e.g., for quick response during 
emergency hospital visits, in areas with an insufficient number of 
qualified interpreters to meet demand, and in rural areas where 
distances and an interpreter's travel time present obstacles).
    In addition to adding the specific definition of VIS, the 
Department proposes to add VIS to the definition of ``auxiliary aids 
and services'' (discussed above in Sec.  35.104) and to set out 
performance standards for VIS at Sec.  35.160.
``Wheelchair''
    The Department proposes the following definition of ``wheelchair'' 
in Sec.  35.104: ``Wheelchair means 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.''
    The proposed definition of ``wheelchair'' is informed by several 
existing definitions of ``wheelchair.'' Section 507 of the ADA defines 
wheelchair in the context of whether to allow wheelchairs in federal 
wilderness areas: ``The term `wheelchair' means a device designed 
solely for use by a mobility-impaired person for locomotion, that is 
suitable for use in an indoor pedestrian area.'' 42 U.S.C. 12207(c)(2). 
The Department believes that while this definition is appropriate in 
the limited context of federal wilderness areas, it is not specific 
enough to provide clear guidance in the array of settings covered by 
title II.
    The other existing federal definition of ``wheelchair'' that the 
Department reviewed is in the Department of Transportation regulation 
implementing the transportation provisions under title II and title III 
of the ADA. The Department of Transportation's definition of 
``wheelchair'' is ``a mobility aid belonging to any class of three or 
four-wheeled devices, usable indoors, designed for and used by 
individuals with mobility impairments, whether operated manually or 
powered.'' 49 CFR 37.3. The Department has adopted much of the language 
from this definition. Under the proposed definition, wheelchairs 
include manually operated and power-driven wheelchairs and mobility 
scooters. Mobility devices such as golf cars, bicycles, and electronic 
personal assistance mobility devices (EPAMDs) are inherently excluded 
from the proposed definition. Typically, the devices covered under the 
proposed definition are single-user, have three to four wheels, and are 
appropriate for both indoor and outdoor pedestrian areas. However, it 
could include a variety of types of wheelchairs and mobility scooters 
with individualized or unique features or models with different numbers 
of wheels. ``Typical indoor and outdoor pedestrian areas'' refer to 
locations and surfaces used by and intended for pedestrians, including 
sidewalks, paved paths, floors of buildings, elevators, and other 
circulation routes, but would not

[[Page 34480]]

include such areas as off-road bike paths, roads (except where allowed 
by law or where a sidewalk is not provided), freeways, or natural 
surfaces such as beaches where there is not a defined circulation route 
for pedestrians.
    The Department does not propose to define specific dimensions that 
qualify a device as a wheelchair. The Department of Transportation's 
definition includes a subpart defining ``common wheelchair'' to provide 
guidance for public transit authorities on which devices must be 
transported. A ``common wheelchair'' is a wheelchair that ``does not 
exceed 30 inches in width and 48 inches in length measured two inches 
above the ground, and does not weigh more than 600 pounds when 
occupied.'' 49 CFR 37.3. The narrower definition of ``common 
wheelchair'' was developed with reference to the requirements for lifts 
to establish parameters for the size and weight a lift can safely 
accommodate. See 49 CFR part 37, App. D (2002). The Department does not 
believe it is necessary to adopt stringent size and weight requirements 
for wheelchairs.
    The Department requests public input on the proposed definition for 
``wheelchair.''
    Question 12: As explained above, the definition of ``wheelchair'' 
is intended to be tailored so that it includes many styles of 
traditional wheeled mobility devices (e.g., wheelchairs and mobility 
scooters). Does the definition appear to exclude some types of 
wheelchairs, mobility scooters, or other traditional wheeled mobility 
devices? Please cite specific examples if possible.
    Question 13: Should the Department expand its definition of 
``wheelchair'' to include Segways[supreg]?
    Question 14: Are there better ways to define different classes of 
mobility devices, such as the weight and size of the device that is 
used by the Department of Transportation in the definition of ``common 
wheelchair''?
    Question 15: Should the Department maintain the non-exhaustive list 
of examples as the definitional approach to the term ``manually powered 
mobility aids''? If so, please indicate whether there are any other 
non-powered or manually powered mobility devices that should be 
considered for specific inclusion in the definition, a description of 
those devices, and an explanation of the reasons they should be 
included.
    Question 16: Should the Department adopt a definition of the term 
``manually powered mobility aids''? If so, please provide suggested 
language and an explanation of the reasons such a definition would 
better serve the public.
    The proposed regulation regarding mobility devices, including 
wheelchairs, is discussed below in the section-by-section analysis for 
Sec.  35.137.

Subpart B--General Requirements

Section 35.130 General Prohibitions Against Discrimination

Section 35.133 Maintenance of Accessible Features

    The general rule regarding the maintenance of accessible features, 
which 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, is unchanged. However, the Department wishes to clarify 
its application and proposes one change to the section.
    The Department has noticed that some covered entities do not 
understand what is required by Sec.  35.133, and it would like to take 
the opportunity presented by this NPRM to clarify the requirement. 
Section 35.133(a) broadly covers all features that are required to be 
accessible under the ADA, from accessible routes and elevators to roll-
in showers and signage. It is not sufficient for a building or other 
feature to be built in compliance with the ADA, only to be changed or 
blocked later so that it becomes inaccessible. A common problem 
observed by the Department is that covered facilities do not maintain 
accessible routes. For example, the accessible routes in offices or 
hallways are commonly obstructed by boxes, furniture, or other items so 
that the routes are inaccessible to individuals who use wheelchairs. 
Under the ADA, the accessible route must be maintained and therefore 
these items are required to be removed. If the items are placed there 
temporarily--for example, if an office receives multiple boxes of 
supplies and is moving them from the hall to the storage room--then 
Sec.  35.133(b) excuses such ``isolated or temporary interruptions.'' 
Other common examples of features that must be maintained, and often 
are not, are platform lifts and elevators. Public entities must ensure 
that these features are operable, and to meet this requirement, regular 
servicing and making repairs quickly will be necessary.
    The Department proposes to amend the rule by adding Sec.  35.133(c) 
to address the discrete situation in which the scoping requirements 
provided in the proposed standards may reduce the number of required 
elements below that are required by the 1991 Standards. In that 
discrete event, a public entity may reduce such accessible features in 
accordance with the requirements in the proposed standards.

Section 35.136 Service Animals

    The Department's title II regulation now 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 35.130(b)(7). In the 
proposed title II language, the Department intends to provide the 
broadest feasible access to individuals with disabilities who use 
service animals, unless a public entity can demonstrate that making the 
modifications would fundamentally alter the nature of the public 
entity's service, program, or activity.
    The proposed section regarding service animals would incorporate 
the Department's policy interpretations as outlined in its published 
technical assistance Commonly Asked Questions about Service Animals 
(1996) (available at http://www.ada.gov/qasrvc.htm), and ADA Business 
Brief: Service Animals (2002) (available at http://www.ada.gov/svcanimb.htm), as well as make changes based on public comment. 
Proposed Sec.  35.136 would:
    1. Expressly incorporate the Department's policy interpretations as 
outlined in its published technical assistance and add that a public 
entity may ask an individual with a disability to remove a service 
animal from the premises if: (i) The animal is out of control and the 
animal's handler does not take effective action to control it; (ii) the 
animal is not housebroken; (iii) the animal's presence or behavior 
fundamentally alters the nature of the service the public entity 
provides (e.g., repeated barking); or (iv) the animal poses a direct 
threat to the health or safety of others that cannot be eliminated by 
reasonable modifications in Sec.  35.136(b);
    2. Add in Sec.  35.136(c) that if a public entity properly excludes 
a service animal, the public entity must give the individual with a 
disability the opportunity to participate in or benefit from the 
services, programs, or activities without having the service animal on 
the premises;
    3. Add in Sec.  35.136(d) requirements that the work or tasks 
performed by a service animal must be directly related to the handler's 
disability; that a service animal that accompanies an individual with a 
disability into a public entity's

[[Page 34481]]

facility must be individually trained to do work or perform a task, be 
housebroken, and be under the control of its owner; and that a service 
animal must have a harness, leash, or other tether;
    4. Add in Sec.  35.136(e) specific language clarifying that ``[a] 
public entity is not responsible for caring for or supervising a 
service animal.'' This proposed language does not require that the 
person with a disability care for his or her service animal if care can 
be provided by a family member, friend, attendant, volunteer, or anyone 
acting on behalf of the person with a disability. This provision is a 
variation on the existing title III language in Sec.  36.302(c)(2), 
which states, ``[n]othing in this part requires a public accommodation 
to supervise or care for a service animal.'' The Department is 
proposing similar modifications to the title III requirements on 
service animals in the NPRM for title III, published concurrently with 
this NPRM.
    5. Expressly incorporate the Department's policy interpretations as 
outlined in its published technical assistance that a public entity 
must not ask what the person's disability is or about the nature of the 
person's disability, nor require proof of service animal certification 
or licensing, but that a public entity may ask (i) if the animal is 
required because of a disability; and (ii) what work or tasks the 
animal has been trained to perform in Sec.  35.136(f);
    6. Expressly incorporate the Department's policy interpretations as 
outlined in its published technical assistance and add that a public 
entity must not require an individual with a disability to pay a fee or 
surcharge or post a deposit as a condition of permitting a service 
animal to accompany its handler in a public entity's facility, even if 
such deposits are required for pets, and that if a public entity 
normally charges its citizens for damage that they cause, a citizen 
with a disability may be charged for damage caused by his or her 
service animal in Sec.  35.136(h).
    These changes will respond to the following concerns raised by 
individuals and organizations that commented in response to the ANPRM.
    Proposed behavior or training standards. Some commenters proposed 
behavior or training standards for the Department to adopt in its 
revised regulation, not only to remain in keeping with the requirement 
for individual training, but also on the basis that without training 
standards the public has no way to differentiate between untrained pets 
and service animals. Because of the variety of individual training that 
a service animal can receive--from formal licensing at an academy to 
individual training on how to respond to the onset of medical 
conditions, such as seizures--the Department is not inclined to 
establish a standard that all service animals must meet. Some of the 
behavioral standards that the Department is proposing actually relate 
to suitability for public access, such as being housebroken and under 
the control of its handler.
    Hospital and healthcare settings. Public entities, including public 
hospitals, must modify policies, practices, or procedures to permit the 
use of a service animal by an individual with a disability. 28 CFR 
35.130(b)(7). The exception to this requirement is if making the 
modification would fundamentally alter the nature of the service, 
program, or activity. The Department generally follows the guidance of 
the Centers for Disease Control and Prevention (CDC) on the use of 
service animals in a hospital setting.
    As required by the ADA, a healthcare facility must permit a person 
with a disability to be accompanied by his or her service animal in all 
areas of the facility in which that person would otherwise be allowed, 
with some exceptions. Zoonotic diseases can be transmitted to humans 
through trauma (e.g., bites or scratches). Although there is no 
evidence that most service animals pose a significant risk of 
transmitting infectious agents to humans, animals can serve as a 
reservoir for a significant number of diseases that could potentially 
be transmitted to humans in the healthcare setting. A service animal 
may accompany its owner 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, rest rooms, and all other 
areas of the facility where visitors are permitted, except those listed 
below.
    Under the ADA, the only circumstances under which a person with a 
disability may not be entitled to be accompanied by his or her service 
animal are those rare circumstances in which it has been determined 
that the animal poses a direct threat to the health or safety of 
others. A direct threat is defined as a significant risk to the health 
or safety of others that cannot be eliminated or mitigated by a 
modification of polices, practices, or procedures. Based on CDC 
guidance, it is generally appropriate to exclude a service animal from 
areas that require a protected environment, including operating rooms, 
holding and recovery areas, labor and delivery suites, newborn 
intensive care nurseries, and sterile processing departments. See 
Centers for Disease Control, Guidelines for Environmental Infection 
Control in Health Care Facilities (June 2003), available at http://www.cdc.gov/mmwr/preview/mmwrhtml/rr5210a1.htm.

Section 35.137 Mobility Devices

    Proposed Sec.  35.137 has been added to provide additional guidance 
to public entities about the circumstances in which power-driven 
mobility devices must be accommodated.
    As discussed earlier in this NPRM, this proposal is in response to 
growing confusion about what types of mobility devices must be 
accommodated. The Department has received complaints and become aware 
of situations where individuals with mobility disabilities have 
utilized for locomotion purposes riding lawn mowers, golf cars, large 
wheelchairs with rubber tracks, gasoline-powered, two-wheeled scooters, 
and other devices that are not designed for use or exclusively used by 
people with disabilities. Indeed, there has been litigation about 
whether the ADA requires covered entities to allow people with 
disabilities to use their EPAMDs like users of traditional wheelchairs. 
Individuals with disabilities have sued several shopping malls in which 
businesses refused to allow a person with a disability to use an EPAMD. 
See, e.g., Sarah Antonacci, White Oaks Faces Lawsuit over Segway, State 
Journal-Register, Oct. 9, 2007, available at http://www.sj-r.com/news/stories/17784.asp; 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. The Department believes 
clarification on what the ADA requires is necessary at this juncture.
    Section 35.137(a) reiterates the general rule that public entities 
shall permit individuals using wheelchairs, scooters, and manually 
powered mobility aids, including walkers, crutches, canes, braces, and 
similar devices, in any areas open to pedestrians. The regulation 
underscores this general proposition because the great majority of 
mobility scooters and wheelchairs must be accommodated under nearly all 
circumstances in which title II applies.
    Section 35.137(b) adopts the general requirement in the ADA that 
public entities must make reasonable modifications to their policies, 
practices, and procedures when necessary to enable an individual with

[[Page 34482]]

a disability to use a power-driven mobility device to participate in 
its services, programs, or activities unless doing so would result in a 
fundamental alteration of their services, programs, or activities.
    If a public entity restricts the use of power-driven mobility 
devices by people without disabilities, then it must develop policies 
addressing which devices and under what circumstances individuals with 
disabilities may use power-driven mobility devices for the purpose of 
mobility. Under the Department's proposed regulation in Sec.  
35.137(c), public entities must adopt policies and procedures regarding 
the accommodation of power-driven mobility devices other than 
wheelchairs and scooters that are designed to assess whether allowing 
an individual with a disability to use a power-driven mobility device 
is reasonable and does not result in a fundamental alteration to its 
programs, services, or activities. Public entities may establish 
policies and procedures that address and distinguish among types of 
mobility devices.
    For example, a city 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 city may address its concerns about factors such as 
space limitations by disallowing EPAMDs by members of the general 
public.
    Section 35.137(c) lists permissible factors that a public entity 
may consider in determining whether the use of different types of 
power-driven mobility devices by individuals with disabilities may be 
permitted. In developing policies, public entities should group power-
driven mobility devices by type (e.g., EPAMDs, golf cars, gasoline-
powered vehicles, wheelchairs designed for outdoor use, and other 
devices). A blanket exclusion of all devices that fall under the 
definition of other power-driven mobility devices in all locations 
would likely violate the proposed regulation.
    The factors listed in Sec.  35.137(c)(1)-(3) may be used in order 
to develop policies regarding the use of other power-driven mobility 
devices by people with disabilities. The dimensions, weight, and other 
characteristics of the mobility device in relation to a wheelchair or 
scooter, as well as the device's maneuverability and speed, may be 
considered. Another permissible factor is the risk of potential harm to 
others. The use of gas-powered golf cars by people with disabilities 
inside a building may be prohibited, for example, because the exhaust 
may be harmful to others. A mobility device that is unsafe to others 
would not be reasonable under the proposed regulation. Additionally, 
the risk of harm to the environment or natural or cultural resources or 
conflicts with federal land management laws and regulations are also to 
be considered. The final consideration is the ability of the public 
entity to stow the mobility device when not in use, if requested by the 
user.
    While a public entity may inquire into whether the individual is 
using the device due to a disability, the entity may not inquire about 
the nature and extent of the disability, as provided in Sec.  
35.137(d).
    The Department anticipates that, in many circumstances, allowing 
the use of unique mobility devices by individuals with disabilities 
will be reasonable to provide access to a public entity's services, 
programs, and activities, and that in many cases it will not 
fundamentally alter the public entity's operations and services. On the 
other hand, the use of mobility devices that are unsafe to others, or 
unusually unwieldy or disruptive, is unlikely to be reasonable and may 
constitute a fundamental alteration.
    Consider the following examples:

    Example 1: Although people who do not have mobility impairments 
are prohibited from operating EPAMDs at the fairgrounds, the county 
has developed a policy allowing people with disabilities to use 
EPAMDs as their mobility device on the fairgrounds. The county's 
policy states that EPAMDs are allowed in all areas of the 
fairgrounds that are open to pedestrians as a reasonable 
modification to its general policy on EPAMDs. The county determined 
that the venue provides adequate space for a larger device such as 
an EPAMD and that it does not fundamentally alter the nature of the 
fair's activities and services. The county's policies do, however, 
require that EPAMDs be operated at a safe speed limit. A county 
employee may inquire at the ticket gate whether the device is needed 
due to the user's disability and also inform an individual with a 
disability using an EPAMD that the county policy requires that it be 
operated at or below the designated speed limit.

    Example 2: The city has developed a policy specific to city hall 
regarding the use of EPAMDs (i.e., users who do not need the devices 
due to disability are required to leave the devices outside the 
building). While most of city hall is spacious, the city has 
determined that it is not reasonable to allow people with 
disabilities to bring their EPAMDs into the recorder of deeds 
office, which is quite small, and the device's dimensions make it 
unsafe and unwieldy in this situation. If it is not possible for the 
individual with a disability to park the mobility device and walk 
into the recorder of deeds office, the city government would still 
be required to provide services to the person through program access 
by meeting the individual in an adjacent, more spacious office, 
allowing him or her to obtain services over the phone, sending an 
employee to the individual's home, or through other means.

    The Department is seeking public comment on the proposed 
definitions and policy concerning wheelchairs and other mobility 
devices.
    Question 17: Are there types of personal mobility devices that must 
be accommodated under nearly all circumstances? Conversely, are there 
types of mobility devices that almost always will require an assessment 
to determine whether they should be accommodated? Please provide 
examples of devices and circumstances in your responses.
    Question 18: Should motorized devices that use fuel or internal-
combustion engines (e.g., all-terrain vehicles) be considered personal 
mobility devices that are covered by the ADA? Are there specific 
circumstances in which accommodating these devices would result in a 
fundamental alteration?
    Question 19: Should personal mobility devices used by individuals 
with disabilities be categorized by intended purpose or function, by 
indoor or outdoor use, or by some other factor? Why or why not?

Section 35.138 Ticketing

    The ticketing policies and practices of public entities are subject 
to title II's nondiscrimination provisions. See 42 U.S.C. 12132. 
Through the investigation of complaints, its enforcement actions, and 
public comments related to ticketing, the Department is aware of the 
need to provide regulatory guidance to entities involved in the sale or 
distribution of tickets. With this NPRM, the Department proposes to 
include a section on ticketing within the general requirements of 
subpart B.
    In response to the ANPRM, individuals with disabilities and related 
advocacy groups commented that the reduced requirements for accessible 
seating in assembly areas underscored the need for clarification from 
the Department on ticketing related issues. One disability advocacy 
group asserted that in order to guarantee equal access to assembly 
areas for people with disabilities, it is necessary to provide 
complementary design standards, sales policies, and operational 
procedures.
    The Department agrees that more explicit regulation is needed to 
ensure that individuals with disabilities are not

[[Page 34483]]

improperly denied access to events because of discriminatory procedures 
for the sale of wheelchair spaces. The Department's enforcement actions 
have demonstrated that some venue operators, ticket sellers, and 
distributors are not properly implementing title II's general 
nondiscrimination provisions.
    The Department has entered into agreements addressing problems with 
ticketing sales and distribution by requiring specific modifications to 
ticketing policies. While these negotiated settlement agreements and 
consent decrees rest on fundamental nondiscrimination principles, they 
represent solutions tailored to specific facilities. The Department 
believes that guidance in this area is needed, but also recognizes that 
ticketing practices and policies vary with venue size and event type, 
and that a ``one-size-fits-all'' approach may be unrealistic.
    The proposed rule clarifies the application of title II with 
respect to ticketing issues in certain contexts, and is intended to 
strike a balance between a covered entity's desire to maximize ticket 
sales and the rights of individuals with disabilities to attend events 
in assembly areas in a manner that is equal to that afforded to 
individuals without disabilities. The proposed rule does not, however, 
purport to cover or clarify all aspects or applications of title II to 
ticketing issues. Moreover, the rule applies only to the sale or 
distribution of tickets that are sold or distributed on a preassigned 
basis.
    Because this rule addresses ticketing policies and practices for 
stadiums, arenas, theaters, and other facilities in which entertainment 
and sporting events are held, its provisions are related to and 
informed by those in proposed Sec.  35.151(g), which establishes design 
requirements for seating in assembly areas. (Section 35.151(g) is 
discussed below in the section-by-section analysis.) After the proposed 
standards are finalized, the scoping reduction will apply to all public 
entities. See proposed 28 CFR 35.133(c) (discussed earlier in the 
section-by-section analysis).
    Ticket distribution methods. Section 35.138(a) states the general 
rule that a public entity shall modify its policies, practices, and 
procedures to ensure that individuals with disabilities can purchase 
single or multi-event tickets for accessible seating in the same way as 
others (i.e., during the same hours and through the same distribution 
methods as other seating is sold) unless doing so would fundamentally 
alter the nature of its ticketing service, program, or activity. The 
proposed rule makes clear that it is meant to reach all public entities 
that provide a service or system by which individuals can purchase 
event tickets, and is not limited to a venue's operation of its own 
ticketing systems.
    The Department has received numerous complaints from individuals 
who were denied the opportunity to acquire tickets for accessible seats 
through avenues such as ticketing pre-sales, promotions, lotteries, or 
wait lists. The proposed rule, at Sec.  35.138(b), makes clear that 
public entities must include accessible seating in all stages of the 
ticketing process, including pre-sales, promotions, lotteries, or wait 
lists.
    Identification of available accessible seating. Section 35.138(c) 
of the proposed rule requires a facility to identify available 
accessible seating if seating maps, brochures, or other information is 
provided to the general public. In the Department's investigations of 
theaters and stadiums, it has discovered that many facilities lack an 
accurate inventory of the accessible seating in their venues, and that 
this information gap results in lost opportunities for patrons who need 
accessible seating. For some public entities, multiple inventories may 
be required to account for different uses of the facilities because the 
locations of accessible seating may change in an arena depending on 
whether it is used for a hockey game, a basketball game, or a concert. 
The proposed rule further provides that the facility identify the 
accessible seating on publicly available seating charts. This 
transparency will facilitate the accurate sale of accessible seating.
    Section 35.138(d) requires public entities to provide individuals 
with disabilities with accurate information about the location of 
accessible seating. The proposed rule specifically prohibits the 
practice of ``steering'' individuals with disabilities to certain 
wheelchair spaces so that the facility can maximize potential ticket 
sales for other unsold wheelchair spaces.
    Season tickets and multiple event tickets. Section 35.138(e) 
addresses the sale of season tickets and other tickets for multiple 
events. The proposed rule provides that public entities must sell 
season tickets or tickets for multiple events for accessible seating in 
the same manner that such tickets are sold to those purchasing general 
seating. The rule also states that spectators purchasing tickets for 
accessible seating on a multi-event basis shall be permitted to 
transfer tickets for single-event use by friends or associates in the 
same fashion and to the same extent other spectators holding tickets 
for the same type of ticketing plan are permitted to do. A facility 
must provide a portable seat for the transferee to use if necessary.
    Secondary market ticket sales. The Department is aware that the 
proposed rule may represent a significant change in practice for many 
public entities with respect to ``secondary market'' ticket sales. 
Because the secondary market is a recognized--and often integral--part 
of the ticketing distribution system for many venues and activities, 
individuals with disabilities will be denied an equal opportunity to 
benefit from the goods offered--attendance at an event--if public 
entities have no obligations with respect to accessible seating bought 
or sold in this way. In conjunction with the proposed rule, the 
Department seeks comment about public entities' current practices with 
respect to the secondary market for tickets, and the anticipated impact 
of the proposed rule on different types of facilities or events. 
Specifically, the Department would like to know:
    Question 20: If an individual resells a ticket for accessible 
seating to someone who does not need accessible seating, should the 
secondary purchaser be required to move if the space is needed for 
someone with a disability? 
    Question 21: Are there particular concerns about the obligation 
imposed by the proposed rule in which a public entity must provide 
accessible seating, including a wheelchair space where needed, to an 
individual with a disability who purchases an ``inaccessible'' seat 
through the secondary market? 
    Release of unsold accessible seats. Section 35.138(f) provides 
regulatory guidance regarding the release of unsold accessible seats. 
Through its investigations, the Department has become familiar with the 
problem of designated accessible seating being sold to the general 
public before people who need accessible seating can buy tickets. As a 
result, individuals who need to use the accessible seating cannot 
attend an event.
    The Department has entered into agreements addressing this problem 
by requiring specific modifications to ticketing policies. While these 
negotiated settlement agreements and consent decrees rest on 
fundamental nondiscrimination principles, they represent solutions 
tailored to specific facilities. The Department believes that guidance 
in this area is needed, but also recognizes that ticketing practices 
and policies vary with venue size and event type, and that a ``one-
size-fits-all'' approach may be unrealistic. These options provide 
flexibility so that ticketing policies can be adjusted

[[Page 34484]]

according to the venue size and event type.
    Facility sell-out. The approach in Sec.  35.138(f)(1) allows for 
the release of unsold accessible seating once standard seats in the 
facility have been sold. (Luxury boxes, club boxes, or suites are not 
required to be sold out before the remaining accessible seats are 
released.) To implement this option, the release of unsold accessible 
seating should be done according to an established, written schedule. 
Blocks of seats should be released in stages, and should include 
tickets in a range of price categories and locations that is 
representative of the range of seating that remains available to other 
patrons.
    Sell-outs in specific seating areas. Under the second option, Sec.  
35.138(f)(2), a facility could release unsold accessible seating in a 
specific seating area once all of the standard seats in that location 
were sold out. For example, if all standard seats in the orchestra 
level are sold, the unsold accessible seats in the orchestra level 
could be released for sale to the general public.
    Sell-outs of specific price ranges. The third approach described at 
Sec.  35.138(f)(3) would permit a public entity to release unsold 
accessible seats in a specific price range if all other standard seats 
in that price range were sold out. For example, if all $50 seats were 
sold, regardless of their location, the unsold $50 accessible seats 
would be released for sale to the general public.
    Question 22: Although not included in the proposed regulation as 
currently drafted, the Department is soliciting comment on 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 discussed 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, holding, and release of accessible seating? What 
considerations should appropriately inform the determination of when 
unsold accessible seating can be released to the general public? 
    Ticket pricing. Section 35.138(g) of the proposed rule addresses 
ticket pricing. The proposed rule codifies the Department's 
longstanding policy that public entities cannot impose a surcharge for 
wheelchair spaces. Accessible seating must be made available at all 
price levels for an event. If an existing facility has barriers to 
accessible seating at a particular price level for an event, then a 
percentage (determined by the ratio of the total number of seats at 
that price level to the total number of seats in the assembly area) of 
the number of accessible seats must be provided at that price level in 
an accessible location. For example, many theaters built prior to the 
passage of the ADA have balconies that are inaccessible to individuals 
who use wheelchairs, and the only wheelchair spaces are located in the 
orchestra level where tickets are more expensive. If a comparably sized 
balcony in a theater built under the ADA's new construction standards 
would have two wheelchair spaces, the older theater must sell two 
orchestra wheelchair spaces at the balcony price on a first come, first 
served basis.
    Fraudulent purchase of designated accessible seating. The 
Department has received numerous comments regarding fraudulent attempts 
to purchase wheelchair spaces for patrons other than those who use 
wheelchairs. Moreover, the Department recognizes that implementation of 
some of its proposals, such as public identification of accessible 
seating, increases the potential for the fraudulent purchase of 
accessible seats by those who do not need them. The Department 
continues to believe that requiring an individual to provide proof that 
he or she is a person with a disability is an unnecessary and 
burdensome invasion of privacy and may unfairly deter individuals with 
disabilities from purchasing tickets to an event.
    Notwithstanding this position, the proposed rule at Sec.  35.138(h) 
would permit public entities to take certain steps to address potential 
ticket fraud. Under proposed Sec.  35.138(h)(1), a covered entity may 
inquire at the time of the ticket purchase for single-event tickets 
whether the wheelchair space is for someone who uses a wheelchair. 
Section 35.138(h)(2) addresses potential ticket fraud for season or 
subscription tickets. Under this provision, a facility may require the 
purchaser to attest in writing that a wheelchair space is for someone 
who uses a wheelchair. However, the regulation preserves the right of 
an individual with a disability to transfer his or her ticket for 
individual events and clarifies that the intermittent use of the 
wheelchair space by a person who does not use a wheelchair does not 
constitute fraud.
    Purchase of multiple tickets. The Department has received numerous 
complaints stating that assembly operators are unfairly restricting the 
number of tickets that can be purchased by individuals with 
disabilities. Many venues limit an individual requiring wheelchair 
seating to purchase no more than two tickets (for him or herself and a 
companion), while other patrons have significantly higher purchase 
limits (if any). This is particularly difficult for families, friends, 
or other groups larger than two that include a person who requires 
accessible seating. If the ticket number is limited, the result for 
wheelchair users is that parents and children, friends, classmates, and 
others are separated. Section 35.138(i) clarifies application of title 
II to ameliorate such a situation.
    There are various ways that covered entities can accommodate groups 
that require at least one wheelchair space. The proposed regulation at 
Sec.  35.138(i)(1) would require a public entity to permit up to three 
companions to sit in a designated wheelchair area, platform, or cross-
over aisle that is designated as a wheelchair area, even if the number 
of companions outnumber the individuals requiring a wheelchair space. 
For example, a parent who uses a wheelchair could attend a concert with 
his or her spouse and their two children, and all four could sit 
together in the wheelchair area. The Department recognizes that some 
advocates may object to this use of designated wheelchair areas because 
it will reduce the amount of accessible seating available for those who 
need it. On balance, however, the Department believes that the 
opportunity to sit with family and friends, as other patrons do, is an 
integral element of the experience of attending a ticketed event, and 
it is an element that is often denied to individuals with disabilities.
    By limiting the number of tickets that can be purchased under this 
provision to four, the Department seeks a balance by which groups and 
families can be accommodated while still leaving ample space for other 
individuals who use wheelchairs. The Department seeks comments from 
individuals, business entities, and advocacy organizations on whether 
the proposed rule will appropriately effectuate the integration and 
nondiscrimination principles underlying the rule.
    Question 23: Is the proposed rule regarding the number of tickets 
that a public entity must permit individuals who use wheelchairs to 
purchase sufficient to effectuate the integration of wheelchair users 
with others? If not, please provide suggestions for achieving the same 
result with regard to individual and group ticket sales.
    Group ticket sales. Group ticket sales present another area in 
which the Department believes additional regulatory guidance is 
appropriate. The purpose of the proposed rule at

[[Page 34485]]

Sec.  35.138(i)(2) is to prevent the current practice of separating 
groups in a way that isolates or segregates those in the group who 
require wheelchair seating. If a group includes one or more individuals 
who use a wheelchair, the proposed rule requires the facility to place 
that group in a seating area that includes wheelchair spaces 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 a wheelchair are not isolated from the group. In existing 
facilities that lack accessible seating in certain areas, e.g., a 
theater with an inaccessible balcony, the proposed regulation would 
require covered entities to seat at least three companions with the 
individuals using a wheelchair in the accessible seating area of the 
orchestra.

Subpart D--Program Accessibility

Section 35.150(b)(2) Safe Harbor

    Under the ``program accessibility'' requirement in title II, each 
service, program, or activity, when viewed in its entirety, must be 
readily accessible to and usable by individuals with disabilities. 28 
CFR 35.150 (emphasis added). The title II regulation makes clear that, 
unlike public accommodations under title III, a public entity is not 
required to make each of its existing facilities accessible to and 
usable by individuals with disabilities. 28 CFR 35.150(a)(1). Moreover, 
public entities are not required to make structural changes to existing 
facilities where other methods are effective in ensuring program 
accessibility. 28 CFR 35.150(b)(1).
    Given that program accessibility is not an element-by-element 
inquiry, but rather looks to the program when ``viewed in its 
entirety,'' and that structural changes are not always required in 
order to provide access to the programs, services, or activities of a 
public entity, the Department believes that the program accessibility 
requirement, itself, may appropriately mitigate any burdens on public 
entities with respect to their existing facilities.
    Nevertheless, in order to provide certainty to public entities and 
individuals with disabilities alike, the Department proposes to add a 
provision to the program accessibility requirement in Sec.  35.150 that 
would clarify that public entities that have brought elements into 
compliance in existing facilities are not, simply because of the 
Department's adoption of the 2004 ADAAG as its new standards, required 
to modify those elements in order to reflect incremental changes in the 
proposed standards. In these circumstances, the public entity is 
entitled to a safe harbor, and is only required to modify elements to 
comply with the proposed standards if the public entity is, 
independently, planning an alteration that is not undertaken in 
fulfillment of its program accessibility obligations. See 28 CFR 
35.151(b). The proposed safe harbor for title II operates only with 
respect to elements that are in compliance with the scoping and 
technical specifications in either the 1991 Standards or the UFAS; it 
does not apply to elements that are addressed by supplemental 
requirements in the 2004 ADAAG. The Department proposes a new Sec.  
35.150(b)(2), denominated Safe Harbor, to Sec.  35.150 (Program 
Accessibility). Section 35.150(a) includes general provisions, and 
paragraph (b) of that section describes the methods by which a public 
entity complies with the program accessibility requirements. Historic 
preservation programs, which are addressed in Sec.  35.150(b)(2) in the 
current regulation, have been moved to Sec.  35.150(b)(3) in the 
proposed rule.
    The Department proposes in Sec.  35.150(b)(2) that if elements in 
an existing facility are in compliance with either the 1991 Standards 
or UFAS, the public entity is not required to alter--or retrofit 
again--such elements to reflect incremental changes in the 2004 ADAAG 
simply because the Department is adopting new ADA Standards. As 
explained above, this safe harbor operates on an element-by-element 
basis, and does not apply to elements subject to requirements that are 
not included in the current ADA Standards for Accessible Design, but 
rather are supplemental requirements in the 2004 ADAAG.

Section 35.150(b)(4) and (5) Existing Play Areas and Recreation 
Facilities

    Play areas. Sections 206.2.17, 206.7.8, and 240.1 of the 2004 ADAAG 
provide a detailed set of requirements for newly constructed and 
altered play areas. Section 240.2.1.1 of the 2004 ADAAG requires that 
at least one ground level play component of each type provided (e.g., 
for different experiences such as rocking, swinging, climbing, 
spinning, and sliding) must be accessible and connected to an 
accessible route. In addition, if elevated play components are 
provided, entities must make at least fifty percent (50%) of the 
elevated play components accessible and connect them to an accessible 
route, and may have to make an additional number of ground level play 
components (representing different types) accessible as well. There are 
a number of exceptions to the technical specifications for accessible 
routes, and there are special rules (incorporated by reference from 
nationally recognized standards for accessibility and safety in play 
areas) for accessible ground surfaces. Accessible ground surfaces must 
be inspected and maintained regularly and frequently to ensure 
continued compliance.
    The Department is concerned about the potential impact of these 
supplemental requirements on existing play areas that are not otherwise 
being altered. The program accessibility requirement does not require 
public entities to make structural modifications to existing facilities 
except where such modifications may be necessary to make the program or 
service, when considered as a whole, accessible to individuals with 
disabilities. Although play areas may be more likely than other types 
of facilities to require structural modifications, this does not mean 
that every existing playground operated by a city or county must be 
made accessible. Compliance with the program accessibility requirement 
turns on the accessibility of the program--i.e., the program of 
providing and maintaining public playgrounds--rather than the 
accessibility of each particular facility used to provide that program. 
Where a public entity provides and maintains multiple play areas as 
part of its program of providing public playgrounds, for purposes of 
the program accessibility requirement, only a reasonable number but at 
least one of such play areas would be required to undertake structural 
modifications to provide access for individuals with disabilities. The 
same reasoning would apply where an existing site (e.g., a state park) 
provides multiple play areas designed for the same age group.
    The Department notes that the requirement to provide a reasonable 
number of accessible play areas is consistent with the longstanding 
program accessibility rules, which provide that it is not necessary for 
every facility to be accessible, provided that the program, when viewed 
in its entirety, is readily accessible to individuals with 
disabilities. In situations where a public entity provides the services 
of one program at multiple sites (e.g., a town with ten parks), the 
public entity would focus on whether the number and location of the 
accessible parks offer comparable convenience to persons with 
disabilities and whether the range of programs and services offered at 
the accessible parks are equivalent to the range offered at the 
inaccessible parks. At a minimum, a

[[Page 34486]]

public entity must provide at least one accessible facility unless the 
public entity can demonstrate that providing the accessible facility 
would result in a fundamental alteration in the nature of its program 
or activity or in undue financial and administrative burdens. However, 
determining how many more than one would be ``reasonable'' requires a 
careful analysis of factors in order to determine how many accessible 
facilities are necessary to ensure that the covered program is 
accessible. Factors to be considered include, but are not limited to, 
the size of the public entity, geographical distance between sites, 
travel times to the sites, the number of sites, and availability of 
public transportation to the sites.
    The Department is proposing several specific provisions and posing 
additional questions in an effort to both mitigate and gather 
information about the potential burden of the supplemental requirements 
on existing public facilities.
    Question 24: Is a ``reasonable number, but at least one'' a 
workable standard for determining the appropriate number of existing 
play areas that a public entity must make accessible for its program to 
be accessible? Should the Department provide a more specific scoping 
standard? Please suggest a more specific standard if appropriate. In 
the alternative, should the Department provide a list of factors that a 
public entity could use to determine how many of its existing play 
areas to make accessible, e.g., number of play areas, travel times, or 
geographic distances between play areas, and the size of the public 
entity? 
    State and local governments may have already adopted accessibility 
standards or codes similar to the 2004 ADAAG requirements for play and 
recreation areas, but which might have some differences from the Access 
Board's guidelines.
    Question 25: The Department would welcome comment on whether there 
are state and local standards specifically regarding play and 
recreation area accessibility. To the extent that there are such 
standards, we would welcome comment on 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. We would also welcome 
comment on whether it would be appropriate for the Access Board to 
consider implementation of guidelines that would permit such a safe 
harbor with respect to play and recreation areas undertaking 
alterations.
    Question 26: The Department requests public comment with respect to 
the application of these requirements to existing play areas. What is 
the ``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?
    The Department is proposing two specific provisions to reduce the 
impact on existing facilities that undertake structural modifications 
pursuant to the program accessibility requirement. First, the 
Department proposes to add Sec.  35.150(b)(5)(i) to provide 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 selected this size based on the provision in section 
1008.2.4.1 of the 2004 ADAAG, Exception 1, permitting 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 twenty 
percent (20%) 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). If these assumptions are 
correct, the proposed exemption would have relatively little impact on 
most existing play areas operated by public entities, while still 
mitigating the burden on those smaller public entities to which it did 
apply.
    Question 27: The Department would like to hear from public entities 
and individuals with disabilities about the potential effect of this 
approach. Should existing play areas less than 1,000 square feet be 
exempt from the requirements applicable to play areas? 
    Secondly, the Department proposes to add Sec.  35.150(b)(4)(i) to 
provide that existing play areas that are not being altered will 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 proposed 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 fifty percent (50%) of the elevated play components are 
accessible.
    Many commenters advised the Department that making elevated play 
components accessible in existing play areas that are not otherwise 
being altered would impose an undue burden on most facilities. Given 
the nature of the element at issue, retrofitting existing elevated play 
components in play areas to meet the scoping and technical 
specifications in the alteration standard would be difficult and 
costly, and in some instances, infeasible. In response to expressed 
concerns, the Department proposes to reduce the scoping for existing 
play areas that are not being altered by permitting entities to 
substitute ground level play components for elevated play components. 
Entities that provide elevated play components that do not comply with 
section 240.2.2 of the 2004 ADAAG would be deemed in compliance for 
purposes of the program accessibility requirement as long as the number 
of accessible ground level play components is equal to the sum of (a) 
the number of ground level play components required to comply with 
section 240.2.1 of the 2004 ADAAG (as provided by Table 240.2.1.2, but 
at least one of each type) and (b) the number of elevated play 
components required to comply with 2004 ADAAG section 240.2.2 (namely, 
fifty percent (50%) of all elevated play components). In existing play 
areas that provide a limited number of ground level play components, 
qualifying for this exception may require providing additional ground 
level play components.
    While this provision may result in less accessibility than the 
application of the alteration standard, public entities will likely be 
more willing to voluntarily undertake structural modifications in play 
areas if they anticipate that compliance will be straightforward and 
relatively inexpensive. In addition, for existing play areas with 
limited resources, it will often be more efficient to devote resources 
to making the ground surface of the play area accessible, which is 
necessary to provide an accessible route to any play components. 
Reduced scoping for elevated play components could also minimize the 
risk that covered entities will delay compliance, remove elevated play 
components, or simply close the play area. It also provides a bright-
line rule for which compliance can be easily evaluated.
    Question 28: The Department would like to hear from public entities 
and individuals with disabilities about the potential effect of this 
approach. Should

[[Page 34487]]

existing play areas be permitted to substitute additional ground level 
play components for the elevated play components it would otherwise 
have been required to make accessible? Are there other select 
requirements applicable to play areas in the 2004 ADAAG for which the 
Department should consider exemptions or reduced scoping? 
    Question 29: The Department would welcome comment on whether it 
would be appropriate for the Access Board to consider implementation of 
guidelines for play and recreational facilities undertaking alterations 
that would permit reduced scoping of requirements or substitution of 
ground level play components in lieu of elevated play components, as 
the Department is proposing with respect to barrier removal obligations 
for certain play or recreational facilities. 
    Swimming pools. As noted earlier, the program accessibility 
requirement does not require public entities to make structural 
modifications to existing facilities except where such modifications 
may be necessary to make the program or service, when considered as a 
whole, accessible to individuals with disabilities. Although swimming 
pools, like play areas, may be more likely than other types of 
facilities to require structural modifications, this does not mean that 
every existing swimming pool operated by a city or county must be made 
accessible. Compliance with the program accessibility requirement turns 
on the accessibility of the program--i.e., the program of providing and 
maintaining public swimming pools--rather than the accessibility of 
each particular facility used to provide that program. Where a public 
entity provides and maintains multiple swimming pools as part of its 
program of providing public swimming pools, for purposes of the program 
accessibility requirement, only a reasonable number but at least one of 
such swimming pools would be required to undertake structural 
modifications to provide access for individuals with disabilities. The 
same reasoning would apply where an existing site (e.g., a city 
recreation center) provides multiple swimming pools serving the same 
purpose.
    Question 30: Is a ``reasonable number, but at least one'' 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? Should the Department provide a more specific 
scoping standard? Please suggest a more specific standard if 
appropriate. In the alternative, should the Department 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? 
    The Department is proposing two specific provisions to minimize the 
potential impact of the new requirements on existing swimming pools 
that undertake structural modifications pursuant to the program 
accessibility requirement. First, the Department is proposing to add 
Sec.  35.150(b)(5)(ii) to provide that swimming pools that have over 
300 linear feet of swimming pool wall and are not being altered will be 
required to provide only one (rather than two) accessible means of 
entry, at least one of which must be a sloped entry or a pool lift. 
This provision represents a less stringent requirement than the 
requirement in 2004 ADAAG section 242.2, which requires such pools, 
when newly constructed or altered, to provide two accessible means of 
entry. Under this proposal, for purposes of the program accessibility 
requirement, swimming pools operated by public entities would be 
required to have at least one accessible entry.
    Commenters responding to the ANPRM noted that the two-means-of-
entry-standard, if applied to existing swimming pools, will 
disproportionately affect small public entities, both in terms of the 
cost of implementing the standard and anticipated litigation costs. 
Larger public entities benefit from economies of scale, which are not 
available to small entities. Although complying with the alteration 
standard would impose an undue burden on many small public entities, 
the litigation-related costs of proving that such compliance is not 
necessary to provide program access may be significant. Moreover, these 
commenters argue, the immediacy of perceived noncompliance with the 
standard--it will usually be readily apparent whether a public entity 
has the required accessible entry or entries--makes this element 
particularly vulnerable to serial ADA litigation. The reduced scoping 
would apply to all public entities, regardless of size.
    The Department recognizes that this approach could reduce the 
accessibility of larger swimming pools compared to the requirements in 
the 2004 ADAAG. Individuals with disabilities and advocates were 
particularly concerned about the accessibility of pools, and noted that 
for many people with disabilities, swimming is one of the few types of 
exercise that is generally accessible and, for some people, can be an 
important part of maintaining health. Other commenters noted that 
having two accessible means of egress from a pool can be a significant 
safety feature in the event of an emergency. It may be, however, that 
as a practical matter the reduction in scoping may not be significant, 
as the measures required to meet the alteration standards for 
accessible entries would often impose an undue burden even if 
considered on a case-by-case basis.
    Question 31: The Department would like to hear from public entities 
and individuals with disabilities about this exemption. Should the 
Department allow existing public entities to provide only one 
accessible means of access to swimming pools more than 300 linear feet 
long?
    Secondly, the Department proposes to add Sec.  35.150(b)(5)(ii) to 
provide that existing swimming pools that have less than 300 linear 
feet of swimming pool wall and are not being altered need not undertake 
structural modifications to comply with the scoping and technical 
requirements for swimming pools in section 242.2 of the 2004 ADAAG. In 
its 2002 regulatory assessment for the recreation guidelines, the 
Access Board assumed that pools with less than 300 feet of linear pool 
wall would represent ninety percent (90%) of the pools in public high 
schools; forty percent (40%) of the pools in public parks and community 
centers; and thirty percent (30%) of the pools in public colleges and 
universities. If these assumptions are correct, the proposed exemption 
would have the greatest impact on the accessibility of swimming pools 
in public high schools.
    Question 32: The Department would like to hear from public entities 
and individuals with disabilities about the potential effect of this 
approach. Should existing swimming pools with less than 300 linear feet 
of pool wall be exempt from the requirements applicable to swimming 
pools?
    Wading pools. Section 242.3 of the 2004 ADAAG provides that newly 
constructed or altered wading pools must provide at least one sloped 
means of entry to the deepest part of the pool. The Department is 
concerned that installing a sloped entry in existing wading pools may 
not be feasible for a significant proportion of public entities and is 
considering creating an exemption for existing wading pools that are 
not being altered.
    Question 33: What 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

[[Page 34488]]

are not being altered be exempt from the requirement to provide a 
sloped entry?
    Saunas and steam rooms. The Department is proposing one specific 
provision to minimize the potential impact of the new requirements on 
existing saunas and steam rooms. Section 241 of the 2004 ADAAG requires 
newly constructed or altered saunas and steam rooms to meet 
accessibility requirements, including accessible turning space and an 
accessible bench. Where saunas or steam rooms are provided in clusters, 
five percent (5%), but at least one sauna or steam room in each 
cluster, will have to be accessible. The Department understands that 
many saunas are manufactured (pre-fabricated) and come in standard 
sizes (e.g., two-person or four-person), and that the two-person size 
may not be large enough to meet the turning space requirement. 
Therefore, the Department proposes in Sec.  35.150(b)(5)(iii) to 
specify that existing saunas or steam rooms that have a capacity of 
only two persons and are not being altered need not undertake 
structural modifications to comply with the scoping and technical 
requirements for saunas and steam rooms in section 241 of the 2004 
ADAAG. While this exception may limit the accessibility of small 
existing saunas or steam rooms in public facilities, such facilities 
would remain subject to the ADA's general requirement to ensure that 
individuals with disabilities have an equal opportunity to enjoy the 
services and amenities of their facilities.
    Exercise machines. Sections 236 and 206.2.13 of the 2004 ADAAG 
require one of each type of fixed exercise machine to meet clear floor 
space specifications and to be on an accessible route. Types of 
machines are generally defined according to the muscular groups 
exercised or the kind of cardiovascular exercise provided.
    Question 34: Will existing facilities have to reduce the number of 
available exercise equipment and machines in order to comply? What 
types of space limitations would affect compliance?
    Team or player seating areas. Section 221.2.1.4 of the 2004 ADAAG 
requires one or more wheelchair spaces to be provided in each team or 
player seating area with fixed seats, depending upon the number of 
seats provided for spectators. For bowling lanes, the requirement would 
be limited to lanes required to be accessible.
    Question 35: Are team or player seating areas in certain types of 
existing facilities (e.g., ice hockey rinks) more difficult to make 
accessible due to existing designs? What types of existing facilities 
typically have design constraints that would make compliance with this 
requirement infeasible?
    Areas of sport activity. Sections 206.2.2 and 206.2.12 of the 2004 
ADAAG require each area of sport activity (e.g., courts and playing 
fields, whether indoor or outdoor) to be served by an accessible route. 
In court sports, the accessible route would also have to directly 
connect both sides of the court. For purposes of the program 
accessibility requirement, as with play areas and swimming pools, where 
an existing facility provides multiple areas of sport activity that 
serve the same purpose (e.g., multiple soccer fields), only a 
reasonable number but at least one (rather than all) would need to meet 
accessibility requirements.
    Question 36: Should the Department create an exception to this 
requirement for existing courts (e.g., tennis courts) that have been 
constructed back-to-back without any space in between them?
    Boating facilities. Sections 206.2.10, 235.2 and 235.3 of the 2004 
ADAAG require a specified number of boat slips and boarding piers at 
boat launch ramps to be accessible and connected to an accessible 
route. In existing boarding piers, the required clear pier space may be 
perpendicular to and extend the width of the boat slip if the facility 
has at least one accessible boat slip, providing that more accessible 
slips would reduce the total number (or widths) of existing boat slips. 
Accessible boarding piers at boat launch ramps must comply with the 
requirements for accessible boat slips for the entire length of the 
pier. If gangways (only one end of route is attached to land) and 
floating piers (neither end is attached to land) are involved, a number 
of exceptions are provided from the general standards for accessible 
routes in order to take into account the difficulty of meeting 
accessibility slope requirements due to fluctuations in water level. In 
existing facilities, moreover, gangways need not be lengthened to meet 
the requirement (except in an alteration, as may be required by the 
path of travel requirement).
    Question 37: The Department is interested in collecting data 
regarding the impact of these requirements in existing boating 
facilities. Are there issues (e.g, space limitations) that would make 
it difficult to provide an accessible route to existing boat slips and 
boarding piers at boat launch ramps? To what extent do the exceptions 
for existing facilities (i.e., with respect to boat slips and gangways) 
mitigate the burden on existing facilities?
    Fishing piers and platforms. Sections 206.2.14 and 237 of the 2004 
ADAAG require at least twenty-five percent (25%) of railings at fishing 
piers and platforms to be no higher than 34 inches high, so that a 
person seated in a wheelchair can fish over the railing, to be 
dispersed along the pier or platform, and to be on an accessible route. 
(An exception permits railings to comply, instead, with the model 
codes, which permit railings to be 42 inches high.) If gangways (where 
only one end of route is attached to land) and floating piers (where 
neither end is attached to land) are involved, a number of exceptions 
are provided from the general standards for accessible routes in order 
to take into account the difficulty of meeting accessibility slope 
requirements due to fluctuations in water level. In existing 
facilities, moreover, gangways need not be lengthened to meet the 
requirement (except, in an alteration, as may be required by the path 
of travel requirement).
    Question 38: The Department is interested in collecting data 
regarding the impact of this requirement on existing facilities. Are 
there issues (e.g., space limitations) that would make it difficult to 
provide an accessible route to existing fishing piers and platforms?
    Miniature golf courses. Sections 206.2.16, 239.2, and 239.3 of the 
2004 ADAAG require at least fifty percent (50%) of the holes on 
miniature golf courses to be accessible and connected to an accessible 
route (which must connect the last accessible hole directly to the 
course entrance or exit); generally, the accessible holes would have to 
be consecutive ones. Specified exceptions apply to accessible routes 
located on the playing surfaces of holes.
    Question 39: The Department is considering creating an exception 
for existing miniature golf facilities that are of a limited total 
square footage, have a limited amount of available space within the 
course, or were designed with extreme elevation changes. If the 
Department were to create such an exception, what parameters should the 
Department use to determine whether a miniature golf course should be 
exempt?

Section 35.151 New Construction and Alterations

    Section 35.151, which provides that those buildings that are 
constructed or altered by, on behalf of, or for the use of a public 
entity shall be designed, constructed, or altered to be readily 
accessible to and usable by individuals with disabilities, is unchanged 
in the proposed rule, but current Sec.  35.151(a) will be redesignated 
as Sec.  35.151(a)(1). The Department will add a new section, 
designated as Sec.  35.151(a)(2), to provide that full compliance with 
the

[[Page 34489]]

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 is now 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 is adding 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.

Section 35.151(b) Alterations

    The Department's proposed rule would amend Sec.  35.151(b)(2) to 
make clear that the path of travel requirements of Sec.  35.151(b)(4) 
do not apply to measures taken solely to comply with program 
accessibility requirements. This amendment is consistent with Sec.  
36.304(d)(1) of the title III regulation, which states that ``[t]he 
path of travel requirements of Sec.  36.403 shall not apply to measures 
taken solely to comply with the barrier removal requirements of this 
section.''
    The two requirements for alterations to historic facilities 
enumerated in current Sec.  35.151(d)(1) and (2) have been combined 
under proposed Sec.  35.151(b)(3), and one substantive change is 
proposed. Proposed Sec.  35.151(b)(3) provides that 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). Currently, the regulation 
provides that alterations to historic facilities shall comply with 
section 4.1.7 of UFAS or section 4.1.7 of the 1991 Standards. See 28 
CFR 35.151(d)(1). However, the proposed regulation requires that 
alterations to historic properties on or after six months after the 
effective date of the proposed regulation comply with the proposed 
standards, not UFAS or the 1991 Standards. See Sec.  35.151(c). 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 unchanged.
    The Department proposes to add Sec.  35.151(b)(4) in order to make 
the path of travel requirement in title II consistent with that in 
title III. Both the Uniform Federal Accessibility Standards (UFAS) and 
the title III regulation contain requirements for provision of an 
accessible ``path of travel'' to the altered area when an existing 
facility is altered, although the circumstances that trigger the 
requirements are somewhat different under each statute. Under section 
4.1.6(3) of UFAS, an accessible route to the altered area, an 
accessible entrance, and (where applicable) accessible toilet 
facilities must be provided when a substantial alteration is made to an 
existing building. An alteration is considered ``substantial'' if the 
total cost of all alterations within any twelve month period amounts to 
fifty percent (50%) or more of the full and fair cash value of the 
building. The proposed rule eliminates the UFAS ``substantial 
alteration'' basis for path of travel requirements because it 
eliminates UFAS as an option.
    The path of travel requirements of the Department's proposed title 
II rule are based on section 303(a)(2) of the ADA, which provides that 
when an entity undertakes an alteration to a place of public 
accommodation or commercial facility that affects or could affect the 
usability of or access to an area that contains a primary function, the 
entity shall ensure that, to the maximum extent feasible, the path of 
travel to the altered area--and the restrooms, telephones, and drinking 
fountains serving it--is readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    The Department proposes to add a provision to the path of travel 
requirement in Sec.  35.151(b)(4)(ii)(C) that would clarify that public 
entities that have brought required elements of the path of travel into 
compliance are not required to modify those elements in order to 
reflect incremental changes in the proposed standards when the public 
entity alters a primary function area that is served by the element. In 
these circumstances, the public entity is entitled to a safe harbor, 
and is only required to modify elements to comply with the proposed 
standards if the public entity is planning an alteration to the 
element.
    The proposed rule provides that areas such as mechanical rooms, 
boiler rooms, supply storage rooms, employee lounges and locker rooms, 
janitorial closets, entrances, and corridors are not areas containing a 
primary function. Nor are restroom areas containing a primary function 
unless the provision of restrooms is the major reason that the facility 
is maintained by a public entity, such as at a highway rest stop. In 
that situation, a restroom would be considered to be an ``area 
containing a primary function'' of the facility.
    The requirement for an accessible path of travel does not apply, 
however, to the extent that the cost and scope of alterations to the 
path of travel is disproportionate to the cost of the overall 
alteration, as determined under criteria established by the Attorney 
General. Sections 227, 42 U.S.C. 12147, and 242, 42 U.S.C. 12162, of 
the ADA adopt the same requirement for public transportation facilities 
under title II.
    Section 202.4 of the proposed standards adopts the statutory path 
of travel requirement, and Sec.  36.403 of the Department's title III 
regulation establishes the criteria for determining when the cost of 
alterations to the path of travel is ``disproportionate'' to the cost 
of the overall alteration. The Department's proposed Sec.  35.151(b)(4) 
will adopt the language now contained in the title III regulation in 
its entirety, 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 twenty percent (20%) of the cost of the alteration to 
the primary function area).

Section 35.151(c) Accessibility Standards for New Construction and 
Alterations

    Section 35.151(c) proposes to adopt Parts I and III of the 
Americans with Disabilities Act and Architectural Barriers Act 
Guidelines, 69 FR 44084 (July 23, 2004) (2004 ADAAG) as the ADA 
Standards for Accessible Design (proposed standards). As the Department 
noted above, the development of these proposed 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 2004 ADAAG 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). The 
Access Board site also includes an extensive discussion of the 
development of the 2004 ADAAG, and a detailed comparison of the 1991 
Standards, the 2004 ADAAG, and the 2003 International Building Code.

[[Page 34490]]

    Appendix A to this proposed rule is an analysis of the major 
changes in the proposed standards and a discussion of the public 
comments that the Department received on specific sections of the 2004 
ADAAG. Comments discussing the costs and benefits of the proposed 
standards have been considered and taken into account by the 
Department's regulatory impact analysis. Comments on the effect of the 
proposed standards on existing facilities are discussed in conjunction 
with the analysis of Sec.  35.150 of this proposed rule.
    The remaining comments addressed global issues, such as the 
Department's proposal to adopt the 2004 ADAAG as the ADA Standards for 
Accessible Design without significant changes.
    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 guidelines published by the Access Board. Commenters suggested 
that the Department should not adopt the 2004 ADAAG, but should develop 
an independent regulation. The Department is a statutory member of the 
Access Board and was actively involved in the development of the 2004 
ADAAG. Because of its long involvement with the process, the Department 
does not believe that it is necessary or appropriate to begin that 
lengthy development process again. Nevertheless, during the process of 
drafting this NPRM, the Department has reviewed the 2004 ADAAG to 
determine if additional regulatory provisions are necessary. As a 
result of this review, the Department decided to propose new sections, 
which are contained in Sec.  35.151(d)-(h), to clarify how the 
Department will apply the proposed standards to social service 
establishments, housing at places of education, assembly areas, and 
medical care facilities. Each of these provisions is discussed below.
    Another general comment suggested that the Department should adopt 
a system for providing formal interpretations of the standards, 
analogous to the code interpretation systems used by states and the 
major model codes. Because the ADA is a civil rights statute, not a 
building code, the statute does not contemplate or authorize a formal 
code interpretation system. The ADA anticipated that there would be a 
need for close coordination of the ADA building requirements with the 
state and local requirements. Therefore, the statute 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 being proposed in an NPRM to 
amend the title III regulation that is being 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, it will issue revised technical assistance 
material to provide guidance about the implementation of this rule.
    Current Sec.  35.151(c) establishes two standards for accessible 
new construction and alteration. Under paragraph (c), design, 
construction, or alteration of facilities in conformance with the 
Uniform Federal Accessibility Standards (UFAS) or with the 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 (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 ADAAG that were 
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 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, 28 CFR part 36, and amended on Jan. 18, 1994, 
59 FR 2674.
    The Department's proposed rule would revise the existing Sec.  
35.151(c) to adopt the 2004 ADAAG as the ADA Standards for Accessible 
Design. The proposed rule amends current Sec.  35.151(c)(1) by revising 
the current language to limit its application to facilities on which 
construction commences within six months of the publication of the 
final rule adopting revised standards. The proposed rule adds paragraph 
(c)(2) to Sec.  35.151, which states that facilities on which 
construction commences on or after the date six months following the 
publication of the final rule shall comply with the proposed standards 
adopted by that rule.
    As a result, for the first six months after the effective date of 
the proposed regulation, public entity recipients can continue to use 
either UFAS or the 1991 Standards and be in compliance with title II. 
Six months after the effective date of the rule, the new standards will 
take effect. Construction in accordance with UFAS will no longer 
satisfy ADA requirements. To avoid placing the burden of complying with 
both standards on public entities, the Department will 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 six-month delay in requiring compliance with the 
2004 Standards is 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 prefers to use the 2004 ADAAG as the 
standard for new construction or alterations commenced within the six-
month period after the effective date of the proposed regulation, such 
entity will be considered in compliance with title II of the ADA.

Section 35.151(d) Scope of Coverage

    The Department is proposing Sec.  35.151(d) to clarify that the 
requirements established by this section, including those contained in 
the proposed standards, prescribe what is necessary to ensure that 
fixed or built-in elements in new or altered facilities are accessible 
to individuals with disabilities. Once the construction or alteration 
of a facility has been completed, all other aspects of programs, 
services, and activities conducted in that facility are subject to the 
operational requirements established in this regulation. Although the 
Department often chooses to use the requirements of the 1991 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 and do not flow automatically 
from the Standards.
    The Department is also clarifying that the advisory notes, appendix 
notes, and figures that accompany the 1991 Standards do not establish 
separately enforceable requirements. This clarification has been made 
to address concerns expressed by 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).

Section 35.151(e) Social Service Establishments

    The Department is proposing a new Sec.  35.151(e) that provides 
that group homes, halfway houses, shelters, or similar social service 
establishments

[[Page 34491]]

that provide temporary sleeping accommodations or residential dwelling 
units shall comply with the provisions of the proposed standards that 
apply to residential facilities, including, but not limited to, the 
provisions in Sec. Sec.  233 and 809 of the 2004 ADAAG.
    The reasons for this proposal are based on two important changes in 
the 2004 ADAAG. For the first time, residential dwelling units are 
explicitly covered in the 2004 ADAAG in section 233. Second, the 
language addressing scoping and technical requirements for homeless 
shelters, group homes, and similar social service establishments is 
eliminated. 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 Department proposed in the ANPRM that the establishments 
currently covered by section 9.5 be covered as residential dwelling 
units in the 2004 ADAAG (section 233), rather than as transient lodging 
guest rooms in section 224. The Department believes this is a prudent 
action based on its effect on social service providers. Transferring 
coverage of social service establishments from transient lodging to 
residential dwelling units will alleviate conflicting requirements for 
social service providers. The Department believes that a substantial 
percentage of social service providers are recipients of federal 
financial assistance from the HUD. The Department of Health and Human 
Services (HHS) also provides financial assistance for the operation of 
shelters through the Administration for Children and Families programs. 
As such, they are covered both by the ADA and section 504. The two 
design standards for accessibility--i.e., 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 dwelling unit 
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 dwelling 
unit section, which harmonizes the regulatory requirements under the 
ADA and section 504. The Department chose the option that harmonizes 
the regulatory requirements: Coverage under the residential dwelling 
units requirements.
    In response to its request for public comments on this issue, the 
Department received a total of eleven responses from industry and 
disability rights groups and advocates. Some commenters representing 
disability rights groups expressed concern that the residential 
dwelling unit requirements in the 2004 ADAAG are less stringent than 
the revised transient lodging requirements, and would result in 
diminished access for individuals with disabilities.
    The commenters are correct that in some circumstances, the 
residential requirements are less stringent, particularly with respect 
to accessibility for individuals with communication-related 
disabilities. Other differences between the residential standards and 
the transient lodging standards include: The residential guidelines do 
not require elevator access to upper floors if the required accessible 
features can be provided on a single, accessible level; and the 
residential guidelines do not expressly require roll-in showers. 
Despite this, the Department still believes that applying the 
residential dwelling unit requirements to homeless shelters and similar 
social service establishments is appropriate to the nature of the 
services being offered at those facilities, and that it will harmonize 
the ADA and section 504 requirements applicable to those facilities. In 
addition, the Department believes that the proposal is consistent with 
its obligations under the Regulatory Flexibility Act to provide some 
regulatory relief to small entities that operate on limited budgets.
    Nevertheless, the Department is requesting information from 
providers who operate homeless shelters, transient group homes, halfway 
houses, and other social service establishments, and from the clients 
of these facilities who would be affected by this proposed change.
    Question 40: To 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?
    Another commenter expressed concern about how the Department would 
address dormitory-style settings in homeless shelters, transient group 
homes, halfway houses, and other social service establishments if they 
are scoped as residential dwelling units. The commenter noted that the 
transient lodging requirements include a specific provision that in 
guest rooms with more than twenty-five beds, at least five percent (5%) 
of the beds must have parallel clear floor space enabling a person 
using a wheelchair to access and transfer to the bed. See sections 
224.3, 806.2.3, 305 of the 2004 ADAAG. The residential dwelling unit 
section does not explicitly include a similar provision.
    In response to this concern, the Department has added Sec.  
35.151(e)(1), which states that in settings where the sleeping areas 
include more than twenty-five beds, and in which the residential 
dwelling unit requirements apply, five percent (5%) of the beds must 
comply with section 806.2.3 of the 2004 ADAAG (i.e., at least five 
percent (5%) must have parallel clear floor space on both sides of the 
bed enabling a person using a wheelchair to access and transfer to the 
bed).
    Definitions of residential facilities and transient lodging. The 
2004 ADAAG adds a definition of ``residential dwelling unit'' and 
modifies the current definition of ``transient lodging.''
    Under section 106.5 of the 2004 ADAAG, a ``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 2004 
ADAAG 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'' and 
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 
2004 ADAAG definition of transient lodging.
    The Department said in the ANPRM that by applying the 2004 ADAAG 
residential facility standards to transient group homes, homeless 
shelters, halfway houses, and other social service establishments, 
these facilities would be more appropriately classified according to 
the nature of the services they provide, rather than the duration of 
those services. Participants in these programs may be housed on either 
a short-term or long-term basis in such facilities, and variations 
occur even within the same programs and the same facility. Therefore, 
duration is an inconsistent way of classifying these facilities.
    Several commenters stated that the definitions of residential 
dwellings and

[[Page 34492]]

transient lodging in the 2004 ADAAG are not clear and will confuse 
social service providers. They noted that including ``primarily long-
term'' and ``primarily short-term'' in the respective definitions 
creates confusion when applied to the listed facilities because they 
serve individuals for widely varying lengths of time.
    The Department is aware of the wide range and duration of services 
provided by social service establishments. Therefore, rather than focus 
on the length of a person's stay at a facility, the Department believes 
that it makes more sense to look at a facility according to the type of 
services provided. For that reason, rather than saying that social 
service establishments ``are'' residential facilities, the Department 
has drafted the proposed Sec.  35.151(e) to provide that group homes, 
and other listed facilities, shall comply with the provisions in the 
2004 ADAAG that would apply to residential facilities.
    Finally, the Department received comments from code developers and 
architects commending the decision to coordinate the 2004 ADAAG with 
the requirements of section 504, and asking the Department to 
coordinate the 2004 ADAAG with the Fair Housing Act's accessibility 
requirements. The Department believes that the coordination of the Fair 
Housing Act with the other applicable disability rights statutes is 
within the jurisdiction of HUD. HUD is the agency charged with the 
responsibility to develop regulations to implement the Fair Housing 
Act, the Architectural Barriers Act, and the provisions of section 504 
applicable to federally funded housing programs.
    Scoping of residential dwelling units for sale to individual 
owners. In the 2004 ADAAG, the Access Board deferred to the Department 
and to HUD, the standard-setting agency under the ABA, to decide 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. These programs include, for example, 
HUD's HOME program. In addition, some states have their own state-
funded programs to construct units for sale to individuals. The 
Department expects that, after consultation and coordination with HUD, 
the Department will make a determination in the final rule.
    Question 41: The 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.

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 architectural features. 
Housing types in educational settings range from traditional residence 
halls and dormitories to apartment or townhouse-style residences. In 
addition to the ADA and section 504, other federal laws, including the 
Fair Housing Act of 1968, may apply. 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.
    Since the enactment of the ADA, the Department has received many 
questions about how the ADA applies to educational settings, including 
school dormitories. Neither the 1991 Standards nor the 2004 ADAAG 
specifically addresses how it applies to housing in educational 
settings. Therefore, the Department is proposing a new Sec.  35.151(f) 
that provides 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. Housing 
provided via individual apartments or townhouses will be subject to the 
requirements for residential dwelling units.
    Public and private school dormitories have varied characteristics. 
Like social service establishments, schools are generally recipients of 
federal financial assistance and are subject to both the ADA and 
section 504. College and university dormitories 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. They are also 
diverse in their layout. Some have double-occupancy rooms and a toilet 
and bathing room shared with a hallway of others, while some may have 
cluster, suite, or group arrangements where several rooms are located 
inside a secure area with bathing, kitchen, and common facilities.
    Public schools are subject to title II and program access 
requirements. Throughout the school year and the summer, school 
dormitories become program areas where 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 and 
common use areas is an essential part of having access to these 
educational programs and activities.
    If the requirements for residential facilities were applied to 
dormitories operated by schools, this could hinder access to 
educational programs for students with disabilities. The prior 
discussion about social service establishments with sleeping 
accommodations explained that the requirements for dispersing 
accessible units would not necessarily require an elevator or access to 
different levels of a facility. Conversely, applying the transient 
lodging requirements to school dormitories would necessitate greater 
access throughout the facility to students with disabilities. 
Therefore, the Department requests public comment on how to scope 
school dormitories.
    Question 42: Would 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? Please provide examples, if possible.

Section 35.151(g) Assembly Areas

    The Department is proposing a new Sec.  35.151(g) to supplement the 
assembly area requirements in the proposed standards. This provision 
would add five additional requirements.
    Section 35.151(g)(1) would require wheelchair and companion seating 
locations to be dispersed so that some seating is available on each 
level served by an accessible route. This requirement should have the 
effect of ensuring the full range of ticket prices, services, and 
amenities offered in the facility. Factors distinguishing specialty 
seating areas are generally dictated by the type of facility or event, 
but may include, for example, such distinct services and amenities as 
reserved seating (when other seats are sold on a first-come-first-
served basis only); reserved seating in sections or rows located in 
premium locations (e.g., behind home plate or near the home team's end 
zone) that are not otherwise available for purchase by other 
spectators; access to wait staff for in-seat food or beverage service; 
availability of catered food or beverages for pre-game, intermission, 
or post-game meals; restricted access to lounges with special 
amenities, such as couches or

[[Page 34493]]

flat screen televisions; or access to team personnel or facilities for 
team-sponsored events (e.g., autograph sessions, sideline passes, or 
facility tours) not otherwise available to other spectators.
    Section 35.151(g)(2) adds the prohibition that the seating may not 
be placed on temporary platforms or other movable structures. The 
Department has become aware that a growing trend in the design of large 
sports facilities is to provide wheelchair seating on removable 
platforms that seat four or more wheelchair users and their companions. 
These platforms cover one or more rows of non-wheelchair seating. The 
platforms are designed to be removed so that the part of the seating 
bowl that they cover can be used to seat additional ambulatory 
spectators. The sale of any seats in the covered area requires removal 
of the platform, thereby eliminating some of the required wheelchair 
seating locations. In another design that produces a similar result, 
removable platforms configured to provide multiple, non-wheelchair 
seats, are installed over some or all of the required wheelchair 
seating locations. In this configuration, selling a ticket for one 
wheelchair location requires the removal of multiple non-wheelchair 
seats.
    The Department believes that both of these designs violate both the 
letter and the intent of this regulation. Both designs have the 
potential to reduce the number of available wheelchair seating spaces 
below the level required. Reducing the number of available spaces is 
likely to result in reducing the opportunity for people who use 
wheelchairs to have the same choice of ticket prices and access to 
amenities that are available to other patrons in the facility. In 
addition, placing wheelchair seating on removable platforms may have a 
disproportionate effect on the availability of seating for individuals 
who use wheelchairs and their companions attempting to buy tickets on 
the day of the event. Use of removable platforms may result in 
instances where last minute requests for wheelchair and companion 
seating cannot be met because entire sections of wheelchair seating 
will be lost when a platform is removed. The use of movable seats, on 
the other hand, could meet such a demand without eliminating blocks of 
wheelchair seating at a time, converting only those seats that are 
needed for ambulatory spectators and are not wanted by individuals who 
use wheelchairs and their companions.
    For these reasons, the Department believes that it is necessary and 
appropriate to prohibit the use of temporary platforms in fixed seating 
areas. Nothing in Sec.  35.151(g) is intended to prohibit the use of 
temporary platforms to increase the available seating, e.g., platforms 
that cover a basketball court or hockey rink when the arena is being 
used for a concert. These areas of temporary seating do not remove 
required wheelchair locations and, therefore, would not violate the 
requirements of this regulation. In addition, covered entities would 
still be permitted to use individual movable seats to infill any 
wheelchair locations that are not sold to wheelchair users.
    Section 35.151(g)(3) would require facilities that have more than 
5,000 seats to provide at least five wheelchair locations with at least 
three companion seats for each wheelchair space. The Department is 
proposing this requirement to address complaints from many wheelchair 
users that the practice of providing a strict one-to-one relationship 
between wheelchair locations and companion seating often prevents 
family members from attending events together.
    Section 35.151(g)(4) would provide more precise guidance for 
designers of stadium-style movie theaters by requiring such facilities 
to locate wheelchair seating spaces and companion seating 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 sixty percent (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).

Section 35.151(h) Medical Care Facilities

    The Department is proposing a new Sec.  35.151(h) on medical care 
facilities, which now must comply with the applicable sections of the 
proposed standards. The Department also proposes that 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 proposed standards in a manner that enables 
patients with disabilities to have access to appropriate specialty 
services.
    The Department is aware that the Access Board sought comment on how 
dispersion of accessible sleeping rooms can effectively be achieved and 
maintained in medical care facilities such as hospitals. In response, 
commenters representing individuals with disabilities supported a 
requirement for dispersion of accessible sleeping rooms among all types 
of medical specialty areas, such as obstetrics, orthopedics, 
pediatrics, and cardiac care. Conversely, commenters representing the 
health care industry pointed out that treatment areas in health care 
facilities can be very fluid due to fluctuation in the population and 
other demographic and medical funding trends. The Access Board decided 
not to add a dispersion requirement because compliance over the 
lifetime of the facility could prove difficult given the need for 
flexibility of spaces within such facilities. The Department recognizes 
that it may be difficult to ensure a perfect distribution of rooms 
throughout all specialty areas in a hospital, but the Department is 
concerned that the absence of any dispersion requirement may result in 
inappropriate concentrations of accessible rooms.
    Question 43: The Department is seeking information from hospital 
designers and hospital administrators that will help it determine how 
to ensure that accessible hospital rooms are dispersed throughout the 
facility in a way that will not unduly restrain the ability of hospital 
administrators to allocate space as needed. The proposed standards 
require that ten percent (10%) of the patient bedrooms in hospitals 
that do not specialize in treating conditions that affect mobility be 
accessible. If it is not feasible to distribute these rooms among each 
of the specialty areas, would it be appropriate to require the 
accessible rooms to be dispersed so that there are accessible patient 
rooms on each floor? Are there other methods of dispersal that would be 
more effective?

Section 35.151(i) Curb Ramps

    The current Sec.  35.151(e) on curb ramps has been redesignated as 
Sec.  35.151(i). The Department has made a minor editorial change, 
deleting the phrase ``other sloped areas'' from the two places in which 
it appears in the current rule. The phrase ``other sloped areas'' lacks 
technical precision. Both the 1991 Standards and the proposed standards 
provide technical guidance for the installation of curb ramps.

Miniature Golf Courses

    The Department proposes to adopt the requirements for miniature 
golf courses in the 2004 ADAAG. However, it requests public comment on 
a suggested change to the requirement for holes to

[[Page 34494]]

be consecutive. A commenter association argued that the ``miniature 
golf experience'' includes not only putting but also enjoyment of 
``beautiful landscaping, water elements that include ponds, fountain 
displays, and lazy rivers that matriculate throughout the course and 
themed structures that allow players to be taken into a `fantasy-like' 
area.'' Thus, requiring a series of consecutive accessible holes would 
limit the experience of guests with disabilities to one area of the 
course. To remedy this situation, the association suggests allowing 
multiple breaks in the sequence of accessible holes while maintaining 
the requirement that the accessible holes are connected by an 
accessible route.
    The suggested change would need to be made by the Access Board and 
then adopted by the Department, and if adopted, it would apply to all 
miniature golf courses, not only existing miniature golf facilities.
    Question 44: The Department would like to hear from the public 
about the suggestion of allowing multiple breaks in the sequence of 
accessible holes, provided that the accessible holes are connected by 
an accessible route. Should the Department ask the Access Board to 
change the current requirement in the 2004 ADAAG?

Accessible Cells in Detention and Correctional Facilities

    Through complaints received, investigations, and compliance reviews 
of jails, prisons, and other detention and correctional facilities, the 
Department has found that many detention and correctional facilities 
have too few or no accessible cells and shower facilities to meet the 
needs of their inmates with mobility disabilities. The insufficient 
numbers of accessible cells are, 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. However, 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 recent article illustrates this 
change. Since 1990, the number of Oklahoma inmates age 45 or older has 
quadrupled, and, in 2006, ten percent (10%) of the Oklahoma state 
prison population was elderly. Angel Riggs, Now in Business: 
Handicapped Accessible Prison: State Opens First Prison for Disabled, 
in Tulsa World (Feb. 20, 2007). Reflecting this trend of aging inmate 
populations, corrections conferences now routinely include workshops on 
strategies to address the needs of elderly prisoners, including the 
increased health care needs. In addition, the Federal Bureau of Prisons 
requires that three percent (3%) of inmate housing at BOP facilities is 
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 lack of sufficient accessible cells is further demonstrated by 
complaints received by the Department. The Department receives dozens 
of complaints per year alleging that detention and correctional 
facilities have too few accessible cells, toilets, and showers for 
inmates with mobility disabilities. Other complaints allege that 
inmates with mobility disabilities are housed in medical units or 
infirmaries separate from the general population simply because there 
are no accessible cells. Another common complaint to the Department is 
from inmates alleging that they are housed at a more restrictive 
classification level simply because no accessible housing exists at the 
appropriate classification level.
    Further, the Department's onsite reviews and investigations of 
detention and correctional facilities confirm the complaints that there 
are too few accessible cells. The need for accessible cells can vary 
widely from facility to facility, depending on the population housed. 
While the requirement that two percent (2%) of the cells have mobility 
features would be adequate to meet current needs in some facilities the 
Department has reviewed, it would not begin to meet current needs at 
other facilities. For example, at one facility with a population of 
almost 300 inmates, ten percent (10%) of the inmates use wheelchairs. 
The requirement that two percent (2%) of cells at this facility must be 
accessible would not meet the needs of inmates with mobility 
disabilities, since it would not be adequate to meet the needs of 
wheelchair users alone. Another facility has a geriatric unit for 60 
inmates. A two percent (2%) standard would fall far short of meeting 
the needs of this largely bedridden population. Another building at 
this same facility has 600 cells and houses more than 18 inmates who 
need accessible cells. Under the two percent (2%) standard, only twelve 
accessible cells would be required.
    According to the Bureau of Justice Statistics (BJS) 2002 survey of 
jail inmates, ``two percent of jail inmates said they had a mobility 
impairment, requiring the use of a cane, walker, wheelchair, or other 
aids to do daily activities.'' Laura M. Maruschak, Bureau of Justice 
Statistics (BJS), Medical Problems of Jail Inmates (2006), available at 
http://www.ojp.usdoj.gov/bjs/abstract/mpji.htm. In a 1997 survey, BJS 
reported that among state prison inmates age 45 or older, twenty-five 
percent (25%) said they had a ``physical condition.'' Laura M. 
Maruschak and Allen J. Beck, Ph.D., Bureau of Justice Statistics, 
Medical Problems of Inmates, 1997 (2001), available at http://www.ojp.usdoj.gov/bjs/abstract/mpi97.htm.
    Number of accessible cells. Section 232.2.1 of the 2004 ADAAG 
requires at least two percent (2%), 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. While the 2004 ADAAG establishes these 
requirements for cells in newly constructed detention and correctional 
facilities, it does not establish requirements for accessible cells in 
alterations to existing facilities, deferring that decision to the 
Attorney General.
    The Department seeks 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 seeks comments 
on the following issues:
    Question 45: Are the requirements for accessible cells in sections 
232.2 and 232.3 of the 2004 ADAAG adequate to meet the needs of the 
aging inmate population in prisons? If not, should the percentage of 
cells required to have accessible features for individuals with 
mobility disabilities be greater and, if so, what is the appropriate 
percentage? Should the requirement be different for prisons than for 
other detention and correctional facilities?
    Question 46: Should the Department 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? Under this option, additional cells provided for 
inmates with mobility disabilities would not necessarily be required to 
comply with all requirements of section 807.2 of the

[[Page 34495]]

2004 ADAAG, so long as a cell had the mobility features needed by the 
inmate it housed.
    Dispersion of cells. In the 2004 ADAAG, Advisory 232.2 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.'' During its onsite 
reviews of detention and correctional facilities, the Department has 
observed that male and female inmates, adult and juvenile inmates, and 
inmates at different security classifications are typically housed in 
separate areas of detention and correctional facilities. 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 the women's section of the 
facility, the juvenile section of the facility, or in a particular 
security classification area.
    Question 47: Please comment on whether the dispersal of accessible 
cells recommended in Advisory 232.2 of the 2004 ADAAG should be 
required.
    Alterations to cells. In section 232.2 of the 2004 ADAAG, the 
Access Board deferred one decision to the Attorney General, 
specifically: ``Alterations to cells shall not be required to comply 
except to the extent determined by the Attorney General.'' The security 
concerns of detention and correctional facilities present challenges 
that do not exist in other government buildings, so the Department must 
strike a balance that accommodates the accessibility needs of inmates 
with disabilities while addressing security concerns. Therefore, in the 
ANPRM, the Department sought public comment on three options for the 
most effective means of ensuring that existing detention and 
correctional facilities are made accessible to inmates with 
disabilities. The proposed options and submitted comments are discussed 
below in the section-by-section analysis for a new proposed section on 
detention and correctional facilities.
    Introduction of new Sec.  35.152 for detention and correctional 
facilities. In view of the statistics regarding the current percentage 
of inmates with mobility disabilities, the fact that prison populations 
include large numbers of aging inmates who are not eligible for parole, 
the allegations in complaints received by the Department from inmates, 
and the Department's own experience with detention and correctional 
facilities, the Department is proposing regulatory language in a new 
section (Sec.  35.152) on correctional facilities, and seeking public 
comment on these issues.
    The proposed rule at Sec.  35.152 is intended to address these 
frequent problems for inmates with disabilities by: (1) Proposing 
specific requirements to ensure accessibility when a correctional or 
detention facility alters cells; (2) specifying that public entities 
shall not place inmates or detainees with disabilities in locations 
that exceed their security classification in order to provide 
accessible cells; (3) requiring that public entities shall not place 
inmates in designated medical units and infirmaries solely due to 
disability; (4) specifying that public entities shall not relocate 
inmates and detainees solely based on disability to different, 
accessible facilities without equivalent programs than where they would 
ordinarily be housed; and (5) requiring that public entities shall not 
deprive inmates or detainees from visitation with family members by 
placing them in distant facilities based on their disabilities. The 
additions to the existing title II regulation, including each of these 
proposals and any public comments received on this topic, are discussed 
in turn below.
    Contractual arrangements with private entities. Prisons that are 
built or run by private entities have caused some confusion with regard 
to requirements under the ADA. The Department believes that title II 
obligations extend to the public entity as soon as the building is used 
by or on behalf of a state or local government entity, irrespective of 
whether the public entity contracts with a private entity to run the 
correctional facility. The power to incarcerate citizens rests with the 
state, not a private entity. As the Department stated in the preamble 
to the current title II regulation, ``[a]ll governmental activities of 
public entities are covered, even if they are carried out by 
contractors.'' 56 FR 35694, 35696 (July 26, 1991). If a prison is 
occupied by state prisoners and is inaccessible, the state is 
responsible under title II of the ADA. In essence, the private builder 
or contractor that operates the correctional facility does so at the 
direction of the state government, unless the private entity elects to 
use the facility for something other than incarceration, in which case 
title III may apply. For that reason, the proposed Sec.  35.152(a) 
makes it clear that this section's requirements will apply to prisons 
operated by public entities directly or through contractual or other 
relationships.
    Alterations to cells and program access. When addressing the issue 
of alterations of prison cells, the Department must consider the 
realities of many inaccessible state prisons and strained budgets 
against the title II program access requirement for existing facilities 
under Sec.  35.150(a), which states: ``A public entity shall operate 
each service, program, or activity, so that the service, program, or 
activity, when viewed in its entirety, is readily accessible to and 
usable by individuals with disabilities.'' The Supreme Court, in 
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206 (1998), 
unanimously held that the ADA unmistakably covers state prisons and 
prisoners, so program access does apply to state correctional 
facilities; the question remains how best to achieve that within the 
unique confines of a prison system.
    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 G.E.Ds; English as a 
second language; computer training; job skill training and on-the-job 
training; religious instruction and guidance; alcohol and substance 
abuse groups; anger management; 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 to 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. The Department's proposed rule aims to specifically 
require equivalent opportunities to such programs.
    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--including those relating 
to a disability--by the state corrections system. If the state fails to 
accommodate prisoners with disabilities, these individuals have little

[[Page 34496]]

recourse, particularly when the need is urgent (e.g., an accessible 
toilet or clean needles for insulin injections for prisoners with 
diabetes).
    In light of a public entity's obligation to provide program access 
to prisoners with disabilities, coupled with the Department's proposal 
for a more flexible alterations standard, the Department believes that 
the state has a higher responsibility to provide accommodations based 
on disability. Therefore, it is essential that state corrections 
systems fulfill their program access requirements 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. Therefore, the Department is proposing a new 
Sec.  35.152 that will require public entities to ensure that inmates 
with disabilities do not experience discrimination because the prison 
facilities or programs are not accessible to them.
    Integration of inmates and detainees with disabilities. The 
Department is also proposing a specific application of the ADA's 
general integration mandate. Section 35.152(b)(2) would require public 
entities to ensure that inmates or detainees with disabilities are 
housed in the most integrated setting appropriate to the needs of the 
individual. Unless the public entity can demonstrate that it is 
appropriate 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;
    (4) Should not place inmates or detainees with disabilities in 
facilities further away from their families in order to provide 
accessible cells or beds, thus diminishing their opportunity for 
visitation based on their disability.

    The Department recognizes 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 follow the provisions of Sec.  35.152(b) may, 
nevertheless, comply with the ADA. However, the Department believes 
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 other sign language users with whom he can 
communicate.
    Question 48: The Department is particularly interested in hearing 
from prison administrators and from the public about the potential 
effect of the assignment scheme proposed here on inmates and detainees 
who are deaf or who have other disabilities. Are there other, more 
appropriate tests to apply?
    Alterations to cells. In the ANPRM, the Department proposed three 
options for altering cells. The vast majority of commenters (numbering 
three to one) supported Option II, which would allow substitute cells 
to be made accessible within the same facility, over Option III. Only 
one commenter expressed support for Option I, and a handful of 
commenters supported Option III. The comments on each option are 
discussed below.
    Option I: Require all altered elements to be accessible. Only one 
commenter supported this option, stating that providing alternative 
approaches could allow those running the prison to provide a lower 
level of accessibility, and that any deviation from the 1991 Standards 
on alterations should be addressed through a barrier removal plan, 
transition plan, or a claim of technical infeasibility. A few 
commenters argued that this option would result in piecemeal 
accessibility, which would be inadequate. As one commenter stated, 
``providing an accessible lavatory or water closet (often a single 
unit) in an inaccessible cell makes no sense.''
    Option II: Permit substitute cells to be made accessible within the 
same facility. Commenters supporting Option II favored the more 
flexible plan to achieve accessibility within a prison context. Many 
expressed support for this option because it would allow individuals 
with disabilities to remain close to their families. One commenter 
requested accessible cells by type (e.g., women's, men's, juvenile, 
different security levels, etc.). Another commenter offered that the 
unique safety concerns of a correctional facility require a balance 
between staff and inmate safety and accessibility. One advocacy group 
reasoned that Option II was best because it would allow prison 
operators to determine the most appropriate location for the accessible 
cells. One group commented that this option would allow the prison 
officials more flexibility, which is necessary in a correctional 
environment. Equally important, keeping inmates in the same facility 
may allow them to remain closer to their homes; the third option could 
create segregated facilities. In the end, this group asserted that each 
facility--rather than each system--should be looked at ``in its 
entirety.''
    One large advocacy group stated that Option II was acceptable, 
stressing that program access requires the same training and work 
opportunities that other prisoners have. An architectural association 
asserted that this option should only apply to existing correctional 
cells, but that any other part of a correctional facility should be 
made accessible when it is altered. The Department, however, is only 
addressing the alterations of prison cells in this rulemaking. While 
expressing support for Option II, a few commenters stressed that cells 
made accessible in a different location in the facility must provide 
equal access to dining, recreational, educational, medical, and visitor 
areas as the former location. Another commenter stated that the 
alternate cell location should not require longer travel distances.
    The Department has evaluated all of the comments and proposes 
regulatory language reflecting Option II, which provides an appropriate 
balance between the needs of prisoners with disabilities and the unique 
requirements of detention and correctional facilities.
    Option III: Permit substitute cells to be made accessible within a 
prison system. The biggest problem that commenters had with Option III 
was that it would be more likely to separate prisoners from their 
families and communities. One advocacy group asserted that this option 
could lead to the illegal segregation of inmates with disabilities; 
moreover, some of the accessible facilities may not have the same 
programs or services (e.g., Alcoholics Anonymous, etc.). One group 
argued that this option would give preference to the needs of the 
prison system over the needs of individuals with disabilities, while 
another group found this option unacceptable because it had seen its 
own state correctional system ``funneling'' its wheelchair-using 
inmates into a few facilities, which

[[Page 34497]]

sometimes exceeded the prisoners' security level requirements. 
Moreover, some prisoners with disabilities are sent to ``special 
housing'' units in a facility because they are the only areas with 
accessible cells.
    In support of Option III, one state building code commissioner 
stressed that this plan would maximize the flexibility of corrections 
officials to place individuals with disabilities in facilities best 
suited to their needs; prison accessibility extends far beyond cells; 
and barrier removal in a very old prison could be cost prohibitive. 
Another commenter, a state department of labor representative, argued 
that Option III is the most reasonable for state-run facilities (but 
that Option I should extend to private correctional facilities) due to 
tremendous budget constraints. As the Department expressed initially, 
the same title II accessibility requirements apply to a facility, 
irrespective of whether it is run directly by the state or a private 
entity with which the state contracts.
    While expressing some support for Option II, one public interest 
law firm representing individuals with disabilities stated that Option 
III is the best, because many older prisons are inaccessible. ``Simply 
having one accessible cell in an otherwise inaccessible facility does 
little good.'' Therefore, requiring an entire prison system to have at 
least one fully accessible facility is the better approach.
    The Department appreciates that Option III affords state 
corrections systems the maximum amount of flexibility with regard to 
placement of individuals with disabilities. Unfortunately, many 
commenters expressed legitimate concerns, most significantly that 
prisoners will, more likely, be separated from family, friends, and 
community, which is critical to their rehabilitation and successful 
release, and many programs at the new facility will not be the same. 
Lastly, the fact that certain facilities could become exclusively, or 
largely, designated for prisoners with disabilities would result in 
segregation, even if it is not intended.
    Proposed requirement for cell alterations. The Department has 
concluded that Option II provides the best balance. Therefore, the 
Department is proposing Sec.  35.152(c) that would provide that when 
cells are being 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, equal physical access as 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.

Subpart E--Communications

Section 35.160 Communications

    The Department proposes to expand Sec.  35.160(a) to clarify 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 their companions as well.
    The Department also proposes to add a new Sec.  35.160(a)(2) that 
will define ``companion'' for the purposes of this section as a person 
who is a family member, friend, or associate of a program participant 
who, along with the participant, is an appropriate person with whom the 
public entity should communicate.
    The Department is proposing to add companions to the scope of 
coverage of Sec.  35.160 to emphasize that the ADA applies in some 
instances in which a public entity needs to communicate with a family 
member, friend, or associate of the program participant in order to 
provide its services. Examples of such situations include when a school 
communicates with the parent of a child during a parent-teacher 
meeting; in a life-threatening situation, when a hospital needs to 
communicate with an injured person's companion to obtain necessary 
information; or when a person may need to communicate with a parole 
officer about a relative's release conditions. In such situations, if 
the companion is deaf or hard of hearing, blind, has low vision, or has 
a disability that affects his or her speech, it is the public entity's 
responsibility to provide an appropriate auxiliary aid or service to 
communicate effectively with the companion. Where communication with a 
companion is necessary to serve the interests of a person who is 
participating in a public entity's services, programs, or activities, 
effective communication must be assured.
    This issue is particularly important in health care settings. The 
Department has encountered confusion and reluctance by medical care 
providers regarding the scope of their obligations with respect to such 
companions. Effective communication with a companion with a disability 
is necessary in a variety of circumstances. For example, a companion 
may be legally authorized to make health care decisions on behalf of 
the patient or may need to help the patient with information or 
instructions given by hospital personnel. In addition, a companion may 
be the patient's next of kin or health care surrogate with whom 
hospital personnel communicate concerning the patient's medical 
condition. Moreover, a companion could be designated by the patient to 
communicate with hospital personnel about the patient's symptoms, 
needs, condition, or medical history. It has been the Department's 
longstanding position that public entities are required to provide 
effective communication to companions who are themselves deaf, hard of 
hearing, or who have other communication-related disabilities when they 
accompany patients to medical care providers for treatment.
    Public entities must be aware, however, that considerations of 
privacy, confidentiality, emotional involvement, and other factors may 
adversely affect the ability of family members or friends to facilitate 
communication. In addition, the Department stresses that privacy and 
confidentiality must be maintained. We note that covered entities, such 
as hospitals, that are subject to the Privacy Rule, 45 CFR parts 160, 
162, and 164, of the Health Insurance Portability and Accountability 
Act of 1996 (HIPPA), Public Law 104-191, are permitted to disclose to a 
patient's relative, close friend, or any other person identified by the 
patient (such as an interpreter) relevant patient information if the 
patient agrees to such disclosures. The agreement need not be in 
writing. Covered entities should consult the Privacy Rule regarding 
other ways disclosures might be able to be made to such persons.
    The Department is proposing to amend Sec.  35.160(b)(2) to 
recognize that the type of auxiliary aid or service necessary to ensure 
effective communication will vary in accordance with the method of 
communication used by the individual; the nature, length, and 
complexity of the communication involved; and the context in which the 
communication is taking place. This addition is a codification of the 
Department's longstanding position, which is included in the Department 
of Justice's The Americans with Disabilities Act, Title II Technical 
Assistance Manual, Covering State and Local Government Programs and 
Services (Title II TA Manual), II-7.1000, available at http://www.ada.gov/taman2.html. For example, an individual who is deaf or hard 
of hearing may need a qualified

[[Page 34498]]

interpreter to discuss with municipal hospital personnel a diagnosis, 
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. For example, an individual 
who is seeking local tax forms may only need an exchange of written 
notes to achieve effective communication.
    The Department proposes adding Sec.  35.160(c) to codify its 
longstanding policy that it is the obligation of the public entity, not 
the individual with a disability, to provide auxiliary aids and 
services when needed for effective communication. In particular, 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. This burden is misplaced. As 
such, Sec.  35.160(c)(1) makes clear that a public entity may not 
require an individual with a disability to bring another individual to 
interpret for him or her.
    Section 35.160(c)(2) codifies the Department's policy that there 
are very 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 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. In such instances, the public entity is still required 
to offer to provide an interpreter free of charge. In no circumstances 
should a child be used to facilitate communication with a parent about 
a sensitive matter. The Department has produced a video and several 
publications that explain this and other ADA obligations in law 
enforcement settings. They may be viewed at http://www.ada.gov or 
ordered from the ADA Information Line (800-514-0301 (voice) or 800-514-
0383 (TTY)).
    Video interpreting services. Section 35.160(d) has been added to 
establish performance standards for video interpreting services (VIS), 
a system the Department recognizes as a means to provide qualified 
interpreters quickly and easily. (The mechanics of VIS are discussed 
above in the definition of VIS in the section-by-section analysis of 
Sec.  35.104.) VIS also has economic advantages, is readily available, 
and because of advances in video technology, can provide a high quality 
interpreting experience. VIS can circumvent the difficulty of providing 
live interpreters quickly, which is why more public entities are 
providing qualified interpreters via VIS.
    There are downsides to VIS, such as frozen images on the screen, or 
when an individual is in a medical care facility and is limited in 
moving his or her head, hands, or arms. Another downside is that the 
camera may mistakenly focus on an individual's head, which makes 
communication difficult or impossible. Also, the accompanying audio 
transmission might be choppy or garbled, making spoken communication 
unintelligible. The Department is aware of complaints that some public 
entities have difficulty setting up and operating VIS because staff 
have not been appropriately trained to do so.
    To address the potential problems associated with the use of VIS, 
the Department is proposing the inclusion of four performance standards 
for VIS to ensure effective communication: (1) High quality, clear, 
real time, full-motion video and audio over a dedicated high speed 
Internet connection; (2) a clear, sufficiently large, and sharply 
delineated picture of the participants' heads, arms, hands, and 
fingers, regardless of the body position of the person who is deaf; (3) 
clear transmission of voices; and (4) nontechnicians who are trained to 
set up and operate the VIS quickly.
    Captioning at sporting venues. The Department is aware that 
individuals who are deaf or hard of hearing have expressed concerns 
that they are unaware of information that is provided over the public 
address systems. Therefore, the Department is proposing requiring that 
sports stadiums with a capacity of 25,000 or more provide captioning 
for patrons who are deaf or hard of hearing for safety and emergency 
information announcements made over the public address system. There 
are various options that could be used for providing captioning, such 
as on a scoreboard, on a line board, on a handheld device, or other 
methods.
    Question 49: The Department believes that requiring captioning of 
safety and emergency information made over the public address system in 
stadiums seating fewer than 25,000 has the potential of creating an 
undue burden for smaller entities. However, the Department requests 
public comment about the effect of requiring captioning of emergency 
announcements in all stadiums, regardless of size. Would such a request 
be feasible for small stadiums?
    Question 50: The Department is considering requiring captioning of 
safety and emergency information in sports stadiums with a capacity of 
25,000 or more within a year of the effective date of the regulation. 
Would a larger threshold, such as sports stadiums with a capacity of 
50,000 or more, be more appropriate or would a lower threshold, such as 
stadiums with a capacity of 15,000 or more, be more appropriate?
    Question 51: If the Department adopted a requirement for captioning 
at sports stadiums, should there be a specific means required? That is, 
should it be provided through any effective means (scoreboards, line 
boards, handheld devices, or other means), or are there problems with 
some means, such as handheld devices, that should eliminate them as 
options?
    Question 52: The Department is aware that several major stadiums 
that host sporting events, including National Football League football 
games at Fed Ex Field in Prince Georges County, Maryland, currently 
provide open captioning of all public address announcements, and do not 
limit captioning to safety and emergency information. What would be the 
effect of a requirement to provide captioning for patrons who are deaf 
or hard of hearing for game-related information (e.g., penalties), 
safety and emergency information, and any other relevant announcements?

Section 35.161 Telecommunications

    The Department proposes to retitle this section 
``Telecommunications'' to reflect situations in which a public entity 
must provide an effective means to communicate by telephone for 
individuals with disabilities, and proposes several other changes.
    The Department proposes to redesignate current Sec.  35.161 as 
Sec.  35.161(a), and to replace the term ``Telecommunication devices 
for the deaf (TDD's)'' with ``text telephones (TTYs).'' Although 
``TDD'' is the term used in the ADA, ``TTY'' has become the commonly 
accepted term and is consistent with the terminology used by the Access 
Board in the 2004 ADAAG. In addition, the proposed regulation updates 
the terminology in light of modern usage from ``individuals with 
impaired hearing or speech'' to ``individuals with hearing or speech 
disabilities.''
    In Sec.  35.161(b), the Department addresses automated attendant 
systems that handle telephone calls electronically. These automated 
systems are a common method for answering and directing incoming calls 
to public

[[Page 34499]]

entities. The Department has become aware that individuals with 
disabilities who use TTYs or the telecommunications relay services--
primarily those who are deaf or hard of hearing or who have speech-
related disabilities--have been unable to use automated telephone trees 
systems, because they are not compatible with TTYs or a 
telecommunications relay service. Automated attendant systems often 
disconnect before the individual using one of these calling methods can 
complete the communication.
    In addition, the Department proposes a new Sec.  35.161(c) that 
would require that individuals using telecommunications relay services 
or TTYs be able to connect to and use effectively any automated 
attendant system used by a public entity. The Department declined to 
address this issue in the 1991 regulation because it believed that it 
was more appropriate for the Federal Communications Commission (FCC) to 
address this in its rulemaking under title IV, 56 FR 35694, 35712 (July 
26, 1991). Because the FCC has since raised this concern with the 
Department and requested that the Department address it, it is now 
appropriate to raise this issue in the title III regulation.
    The Department has proposed Sec.  35.161(c), which requires that a 
public entity must respond to telephone calls from a telecommunications 
relay service established under title IV of the Americans with 
Disabilities Act in the same manner that it responds to other telephone 
calls. The Department proposes adding this provision to address a 
series of complaints from those who use TTYs or the telecommunications 
relay systems that many public entities refuse to accept those calls.

Section 35.170 Complaints--Prison Litigation Reform Act

    In the ANPRM, the Department proposed addressing the effect of the 
Prison Litigation Reform Act (PLRA) on complaints by prisoners alleging 
unlawful discrimination on the basis of disability under title II of 
the ADA. The PLRA provides, in relevant part, that ``[n]o action shall 
be brought with respect to prison conditions under section 1983 of this 
title, or any other federal law, by a prisoner confined in any jail, 
prison, or other correctional facility until such administrative 
remedies as are available are exhausted.'' 42 U.S.C. 1997e(a). As a 
result of this language, the Department proposed requiring those 
prisoners alleging title II violations to file an administrative 
complaint with the Department prior to filing a lawsuit, and that a 
complainant would satisfy this requirement if no action was taken by 
the Department within sixty days. The Department has considered the 
comments that it received by a variety of groups and has decided not to 
propose an exhaustion requirement exclusively for prisoners in the 
regulation.

Sections 35.171, 35.172, and 35.190 Streamlining Complaint 
Investigations and Designated Agency Authority

    The Department is proposing modifications to its current procedures 
with respect to the investigation of complaints alleging discrimination 
on the basis of disability by public entities under title II of the 
ADA. Specifically, the Department is proposing several amendments to 
its enforcement procedures in order to streamline both its internal 
procedures for investigating complaints and its procedures with regard 
to the other designated agencies with enforcement responsibilities 
under title II. These proposals will reduce the administrative burdens 
associated with implementing the statute and ensure that the Department 
retains the flexibility to allocate its limited enforcement resources 
effectively and productively.
    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. 
Subpart G identifies eight ``designated agencies,'' including the 
Department, that have responsibility for investigating complaints under 
title II.
    The Department's current title II regulation is based on the 
enforcement procedures established in regulations implementing section 
504. Thus, the Department's current 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).
    In the years since the current 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 it has received and directed its resources 
to resolving the most critical matters. The Department proposes to 
clarify in its revised regulation that designated agencies may exercise 
discretion in selecting title II complaints for resolution by deleting 
the term ``each'' as it appears before ``complaint'' in Sec.  
35.172(a). The proposed rule at Sec.  35.172(a) would read that, 
``[t]he designated agency shall investigate complaints'' rather than 
``investigate each complaint.''
    The Department also proposes to change the 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. The current 
language requires the agency to refer the complaint to the Department, 
which, in turn, refers the complaint. The proposed revisions to Sec.  
35.171 make it clear that an agency can refer a misdirected complaint 
either directly to the appropriate agency or to the Department. This 
amendment is intended to protect against the unnecessary backlogging of 
complaints and to prevent undue delay in an agency taking action on a 
complaint.
    The Department is also proposing to make clear that the same 
procedures that apply to complaint investigations also apply to 
compliance reviews that are not initiated by receipt of a complaint, 
but rather are based on other information indicating that 
discrimination exists in a service, program, or activity covered by 
this part. This provision is consistent with the Department's 
procedures for enforcing title III of the ADA as well as title VII of 
the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., and 
section 504. Section 203 of the ADA provides that those same rights, 
remedies, and procedures shall apply to title II of the ADA, 42 U.S.C. 
12133. The Department's proposed rule renames Sec.  35.172(a), 
``Investigations and Compliance Reviews,'' and provides in new 
paragraph (b) that ``[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.''
    Finally, the Department is proposing to streamline the requirements 
for letters of findings. Section 35.172 of the Department's current 
regulation requires designated agencies to investigate all complete 
complaints for which they are responsible as determined under Sec.  
35.171. Specifically, a designated agency must issue a letter of 
findings at the conclusion of the investigation if the complaint was 
not resolved informally and attempt to negotiate a voluntary compliance 
agreement if a violation was

[[Page 34500]]

found. The Department's proposal will clarify that letters of finding 
are only required when a violation is found. The discussion of letters 
of finding is moved to a new paragraph (c) in the proposed rule, and 
provides the same language as in the current regulation with the 
exception that the phrase ``and a violation is found'' is added 
following the phrase ``if resolution is not achieved.''
    Subpart G of the existing regulation deals with the various agency 
designations that the Department proposed in promulgating the 
regulation for title II of the ADA. Current Sec.  35.190 lays out all 
of the agency designations. Paragraphs 35.190(c) and (d), respectively, 
leave to the discretion of the Attorney General decisions where 
delegations are not specifically assigned or where there are apparent 
conflicts of jurisdiction. The Department's proposed rule would add a 
new Sec.  35.190(e) in order to deal with the situation in which a 
complainant has sought the assistance of the Department of Justice. The 
proposed rule at 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 that may fall within the jurisdiction of a 
designated agency or another federal agency that has 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 regarding its intention to 
review when it plans to retain the complaint. In appropriate 
circumstances, the Department and the designated agency may conduct a 
joint investigation. Finally, the Department also proposes to amend 
Sec.  35.171(a)(2)(ii) to be consistent with the changes in the 
proposed rule at Sec.  35.190(e).

Additional Information

Withdrawal of Outstanding NPRMs

    With the publication of this NPRM, the Department is withdrawing 
three outstanding NPRMs: The joint NPRM of the Department and the 
Access Board dealing with children's facilities, published on July 22, 
1996, at 61 FR 37964; the Department's proposal to extend the time 
period for providing curb ramps at existing pedestrian walkways, 
published on November 27, 1995, at 60 FR 58462; and the Department's 
proposal to adopt the Access Board's accessibility guidelines and 
specifications for state and local government facilities, published as 
an interim final rule by the Access Board on June 20, 1994, at 59 FR 
31676, and by the Department as a proposed rule on June 20, 1994, at 59 
FR 31808. To the extent that those proposals were incorporated in the 
2004 ADAAG, they will all be included in the Department's proposed 
standards.

Regulatory Process Matters

    This NPRM has been reviewed by the Office of Management and Budget 
(OMB) under Executive Order 12866, 58 FR 51735 (Sept. 30, 1993). The 
Department has evaluated its existing regulations for title II and 
title III section by section, and many of the proposals in its NPRMs 
for both titles reflect its efforts to mitigate any negative effects on 
small entities. The Department has also prepared its initial regulatory 
impact analysis (RIA), as directed by Executive Order 12866 (amended 
without substantial change by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), 
and E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), and OMB Circular A-4.
    The Department's initial regulatory impact analysis measures the 
incremental benefits and costs of the proposed standards relative to 
the benefits and costs of the 1991 Standards. The assessment has 
estimated the benefits and costs of all new and revised requirements as 
they would apply to newly constructed facilities, altered facilities, 
and facilities that are removing barriers to access.
    A summary of the regulatory assessment, including the Department's 
responses to public comments addressing its proposed methodology and 
approach, is attached as Appendix B to this NPRM. The complete, formal 
report of the initial regulatory impact analysis is available online 
for public review on the Department's ADA Home Page (http://www.ada.gov) and at http://www.regulations.gov. The report is the work 
product of the Department's contractor, HDR/HLB Decision Economics, 
Inc. The Department has adopted the results of this analysis as its 
assessment of the benefits and costs that the proposed standards will 
confer on society. The Department invites the public to read the full 
report and to submit electronic comments at http://www.regulations.gov.

Regulatory Flexibility Act

    This NPRM has also been reviewed by the Small Business 
Administration's Office of Advocacy pursuant to Executive Order 13272, 
67 FR 53461 (Aug. 13, 2002). Because the proposed rule, if adopted, may 
have a significant economic impact on a substantial number of small 
entities, the Department has conducted an Initial Regulatory 
Flexibility Analysis (IRFA) as a component of this rulemaking. The 
Department's ANPRM, NPRM, and the RIA include all of the elements of 
the IRFA required by the Regulatory Flexibility Act (RFA). See 5 U.S.C. 
601 et seq., as amended by SBREFA, 5 U.S.C. 603(b)(1)-(5), 603(c).
    Section 603(b) lists specific requirements for an IRFA regulatory 
analysis. The Department has addressed these IRFA issues throughout the 
ANPRM, NPRM, and the RIA. In summary, the Department has satisfied its 
IRFA obligations under section 603(b) by providing the following:
    1. Description of the reasons that action by the agency is being 
considered. See, e.g., ``The Roles of the Access Board and the 
Department of Justice,'' ``The Revised Guidelines,'' and ``The Advance 
Notice of Proposed Rulemaking'' sections of the titles II and III 
NPRMs; Section 2.1, ``Access Board Regulatory Assessment'' of the 
Initial Regulatory Impact Analysis; see also Department of Justice ADA 
Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768-70 (Sept. 
30, 2004) (outlining the regulatory history and rationale underlying 
DOJ's proposal to revise its regulations implementing titles II and III 
of the ADA);
    2. Succinct statement of the objectives of, and legal basis for, 
the proposed rule. See, e.g., titles II and III NPRM sections entitled, 
``Summary,'' ``Overview,'' ``Purpose,'' ``The ADA and Department of 
Justice Regulations,'' ``The Roles of the Access Board and the 
Department of Justice,'' ``Background (SBREFA, Regulatory Flexibility 
Act, and Executive Order) Reviews,'' and ``Regulatory Impact 
Analysis''; App. B: Regulatory Assessment sections entitled, 
``Background,'' ``Regulatory Alternatives,'' ``Regulatory Proposals 
with Cost Implications,'' and ``Measurement of Incremental Benefits''; 
see also 69 FR at 58768-70, 58778-79 (outlining the goals and statutory 
directives for the regulations implementing titles II and III of the 
ADA);
    3. Description of, and, where feasible, an estimate of the number 
of small entities to which the proposed rule will apply. See Section 6, 
``Small Business Impact Analysis'' and App. 5, ``Small Business Data of 
the RIA'' (available for review at http://www.ada.gov); see also App. 
B: 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 proposed rules 
and calculating the likely incremental economic impact of

[[Page 34501]]

these rules on small facilities/entities versus ``typical'' (i.e., 
average-sized) facilities/entities);
    4. Description of the projected reporting, record-keeping, and 
other compliance requirements of the proposed rule, including an 
estimate of the classes of small entities that will be subject to the 
requirement and the type of professional skills necessary for 
preparation of the report or record. See titles II and III NPRM 
sections entitled, ``Paperwork Reduction Act'' (providing that no new 
record-keeping or reporting requirements will be imposed by the NPRMs). 
The Department acknowledges that there are other compliance 
requirements in the NPRMs that may impose costs on small entities. 
These costs are presented in the Department's Initial Regulatory Impact 
Analysis, Chapter 6, ``Small Business Impact Analysis'' and 
accompanying App. 5, ``Small Business Data'' (available for review at 
http://www.ada.gov);
    5. Identification, to the extent practicable, of all relevant 
federal rules that may duplicate, overlap, or conflict with the 
proposed rule. See, e.g., title II NPRM sections entitled, ``Analysis 
of Impact on Small Entities'' (generally describing DOJ efforts to 
eliminate duplication or overlap in federal accessibility guidelines), 
``The ADA and Department of Justice Regulations,'' ``Social Service 
Establishments'' (Sec.  35.151(e)), ``Streamlining Complaint 
Investigations and Designated Agency Authority'' (Sec. Sec.  35.171, 
35.172, and 35.190), ``Executive Order 13132: Federalism'' (discussing 
interplay of section 504 and ADA Standards), ``Alterations'' (Sec.  
35.151(b)) (discussing interplay of UFAS and ADA Standards); title III 
NPRM sections entitled, ``Analysis of Impact on Small Entities'' 
(generally describing DOJ's harmonization efforts with other federal 
accessibility guidelines), ``Social Service Establishments'' (Sec.  
36.406(d)), ``Definitions of Residential Facilities and Transient 
Lodging,'' ``Housing at a Place of Education'' (Sec.  36.406(e)) 
(discussing section 504), ``Change `Service Animal' to `Assistance 
Animal,' '' ``Scope of Coverage'' (discussing Fair Housing Act), 
``Effective Date: Time Period,'' and ``Social Service Establishments'' 
(discussing UFAS); and
    6. Description of any significant alternatives to the proposed rule 
that accomplish the stated objectives of applicable statutes and 
minimize any significant impact of the proposed rule on small entities, 
including alternatives considered, such as: (1) Establishment of 
differing compliance or reporting requirements or timetables that take 
into account the resources available to small entities; (2) use of 
performance rather than design standards; and (3) any exemption from 
coverage of the rule, or any part thereof, for such small entities.
    The Department's rulemaking efforts satisfy the IRFA requirement 
for consideration of significant regulatory alternatives. In September 
2004, the Department issued an ANPRM to commence the process of 
revising its regulations implementing titles II and III of the ADA. See 
69 FR 58768 (Sept. 30, 2004). Among other things, the ANPRM sought 
public comment on 54 specific questions. Prominent among these 
questions was the issue of whether (and how) to craft a ``safe harbor'' 
provision for existing title III-covered facilities/entities that would 
reduce the financial burden of complying with the 2004 ADAAG. See id. 
at 58771-72. The ANPRM also specifically invited comment from small 
entities concerning the proposed rules' potential economic impact and 
suggested regulatory alternatives to ameliorate such impact. Id. at 
58779 (Question 10). By the end of the comment period, the Department 
had received over 900 comments, including comments from SBA's Office of 
Advocacy and small entities. See, e.g., title II NPRM Preamble and 
title III NPRM Preamble sections entitled, ``The Advance Notice of 
Proposed Rulemaking'' (summarizing public response to the ANPRM). Many 
small business advocates expressed concern regarding the cost of making 
older existing title III-covered buildings compliant with new 
regulations (since many small businesses operate in such facilities) 
and urged DOJ to issue clearer guidance on barrier removal. See title 
III NPRM Preamble discussion of ``Safe harbor and other proposed 
limitations on barrier removal.''
    In drafting the NPRMs for titles II and III, the Department 
expressly addressed small businesses' collective ANPRM comments and 
proposed regulatory alternatives to help mitigate the economic impact 
of the proposed regulations on small entities. For example, the 
Department's regulatory proposals:
     Provide a ``safe harbor'' provision whereby elements in 
existing title II- or title III-covered buildings or facilities that 
are compliant with the current 1991 Standards or UFAS need not be 
modified to comply with the standards in the proposed regulations (see 
``Safe Harbor'' and Sec.  35.150(b)(2) of the title II NPRM; ``Safe 
Harbor and Other Proposed Limitations on Barrier Removal'' and Sec.  
36.304 of the title III NPRM);
     Adopt a regulatory alternative for barrier removal that, 
for the first time, provides a specific annual monetary ``cost cap'' 
for barrier removal obligations for qualified small businesses (see 
title III NPRM sections entitled, ``Safe Harbor and Other Proposed 
Limitations on Barrier Removal'' and ``Safe Harbor for Qualified Small 
Businesses Regarding What Is Readily Achievable'');
     Exempt certain existing small recreational facilities 
(i.e., play areas, swimming pools, saunas, and steam rooms) which, in 
turn, are often owned or operated by small entities, from barrier 
removal obligations in order to comply with the standards in the 
proposed regulations (see title II NPRM at Sec.  35.150(b)(4) and (5); 
title III NPRM section entitled, ``Reduced Scoping for Public 
Accommodations, Small Facilities, and Qualified Small Businesses''); 
and
     Reduce scoping for certain other existing recreational 
facilities (i.e., play areas over 1,000 square feet and swimming pools 
with over 300 linear feet of pool wall) operated by either title II or 
title III entities (see title II NPRM at Sec.  35.150(b)(4) and (5); 
title III NPRM section entitled, ``Reduced Scoping for Public 
Accommodations, Small Facilities, and Qualified Small Businesses'').
    Taken together, the foregoing regulatory proposals amply 
demonstrate that the Department was sensitive to the potential economic 
impact of the revised regulations on small businesses and attempted to 
mitigate this impact with a variety of provisions that, to the extent 
consistent with the ADA, impose reduced compliance standards on small 
entities.
    Section 610 Review. The Department is also required to conduct a 
periodic regulatory review pursuant to section 610 of the RFA, 5 U.S.C. 
601 et seq., as amended by the SBREFA, 5 U.S.C. 610 et seq.
    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

[[Page 34502]]

amend or rescind the rule, to minimize any significant economic impact 
of the rule on a substantial number of small entities. See id. at 610 
(a).
    In developing these proposed rules, the Department has gone through 
its regulations section by section, and, as a result, proposes several 
clarifications and amendments in both the title II and title III 
implementing regulations. The proposals reflect the Department's 
analysis and review of complaints or comments from the public as well 
as changes in technology. Many of the proposals 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 is functionally equivalent to the process required to 
complete a section 610 review. Therefore, this rulemaking fulfills the 
Department's obligations under the RFA.

Executive Order 13132: Federalism

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), 
requires executive branch agencies to consider whether a proposed 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 proposed 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 
regulations are not novel for state and local governments. This 
proposed rule will preempt state laws affecting entities subject to the 
ADA only to the extent that those laws directly conflict with the 
statutory requirements of the ADA. But the Department believes it is 
prudent to consult with public entities about the potential federalism 
implications of the proposed title II regulations.
    In addition, the interaction of title II and title III has 
potentially significant federalism implications. 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 regulation set minimum civil rights 
protections for individuals with disabilities that in turn may affect 
the implementation of state and local laws, particularly building 
codes. For these reasons, the Department has determined that this NPRM 
may have federalism implications and requires intergovernmental 
consultation in compliance with Executive Order 13132.
    The Department intends to amend the regulation in a manner that 
meets the objectives of the ADA while also minimizing conflicts between 
state law and federal interests. To that end, as a member of the Access 
Board, the Department has been privy to substantial feedback from state 
and local governments through the development of the 2004 ADAAG. In 
addition, the Department solicited and received input from public 
entities in the September 2004 ANPRM. Some elements of the proposed 
rule reflect the Department's work to mitigate federalism implications, 
particularly the provisions that streamline the administrative process 
for state and local governments seeking ADA code certification under 
title III.
    The Department is now soliciting comments from elected state and 
local officials and their representative national organizations through 
this NPRM. The Department seeks comment from all interested parties, 
but especially state and local elected officials, about the potential 
federalism implications of the proposed rule. The Department will 
welcome comments on whether the proposed rule may have direct effects 
on state and local governments, the relationship between the Federal 
Government and the States, or the distribution of power and 
responsibilities among the various levels of government.

National Technology Transfer and Advancement Act of 1995

    The National Technology Transfer and Advancement Act of 1995 
(NTTAA) directs that all federal agencies and departments 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 (15 U.S.C. 272(b)). In addition, the statute 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.
    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 proposed standards are based. As part of this update, the 
Board has made its guidelines more consistent with model building 
codes, such as the International Building Code (IBC), and industry 
standards. It coordinated extensively with model code groups and 
standard-setting bodies throughout the process so that differences 
could be reconciled. As a result, an historic level of harmonization 
has been achieved, which 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 that also 
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 during normal 
business hours to obtain

[[Page 34503]]

assistance in understanding anything in this rule. If any commenter has 
suggestions for how the regulation could be written more clearly, 
please contact Janet L. Blizard, Deputy Chief, Disability Rights 
Section, whose contact information is provided in the introductory 
section of this rule, entitled, FOR FURTHER INFORMATION CONTACT.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1980 (PRA), 44 U.S.C. 3501 et seq., 
requires agencies to clear forms and record keeping requirements with 
OMB before they can be introduced. 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 provisions of the Unfunded Mandates 
Reform Act.

List of Subjects in 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.

    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, Public Law 101-336, 42 U.S.C. 12134, and for the 
reasons set forth in the preamble, chapter I of Title 28 of the Code of 
Federal Regulations is proposed to be amended as follows:

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

    1. The authority citation for 28 CFR part 35 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.

Subpart A--General

    2-3. Amend Sec.  35.104 by adding the following definitions of 1991 
Standards, 2004 ADAAG, direct threat, existing facility, other power-
driven mobility device, proposed standards, service animal, qualified 
reader, video interpreting services (VIS), 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 ADA Standards for Accessible Design, 
codified at 28 CFR part 36, Appendix A.
    2004 ADAAG means the requirements set forth in appendices B and D 
to 36 CFR part 1191.
* * * * *
    Auxiliary aids and services includes--
    (1) Qualified interpreters, notetakers, 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, text telephones (TTYs), 
videotext displays, video interpreting services (VIS), accessible 
electronic and information technology, or other effective methods of 
making orally 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;
* * * * *
    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.
* * * * *
    Existing facility means a facility that has been constructed and 
remains in existence on any given date.
* * * * *
    Other power-driven mobility device means 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.
    Proposed standards means the requirements set forth in appendices B 
and D to 36 CFR part 1191 as adopted by the Department of Justice.
* * * * *
    Qualified interpreter means an interpreter who is able to interpret 
effectively, accurately, and impartially using any necessary 
specialized vocabulary. Qualified interpreters include, for example, 
sign language interpreters, oral interpreters, and cued speech 
interpreters. Oral interpreter means an interpreter who has special 
skill and training to mouth a speaker's words silently for individuals 
who are deaf or hard of hearing. Cued speech interpreter means an 
interpreter who 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.
* * * * *
    Qualified reader means a person who is able to read effectively, 
accurately, and impartially using any necessary vocabulary.
* * * * *
    Service animal means any dog or other common domestic animal 
individually trained to do work or perform tasks for the benefit of a 
qualified individual with a disability, including, but not limited to, 
guiding individuals who are blind or have low vision, alerting 
individuals who are deaf or hard of hearing to the presence of people 
or sounds, providing minimal protection or rescue work, pulling a 
wheelchair, fetching items, assisting an individual during a seizure, 
retrieving medicine or the telephone, providing physical support and 
assistance with balance and stability to individuals with mobility 
disabilities, and assisting individuals, including those with cognitive 
disabilities, with navigation. The term service animal includes 
individually trained animals that do work or perform tasks for the 
benefit of individuals with disabilities, including psychiatric, 
cognitive, and mental disabilities. The term service animal does not 
include wild animals (including nonhuman primates born in captivity), 
reptiles, rabbits, farm animals (including any breed of horse, 
miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. 
Animals whose sole function is to provide emotional support, comfort, 
therapy, companionship, therapeutic benefits, or to promote emotional 
well-being are not service animals.
* * * * *
    Video interpreting services (VIS) means an interpreting service 
that uses video conference technology over high

[[Page 34504]]

speed Internet lines. VIS generally consists of a videophone, monitors, 
cameras, a high speed Internet connection, and an interpreter.
    Wheelchair means 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.

Subpart B--General Requirements

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


Sec.  35.133  Maintenance of accessible features.

* * * * *
    (c) If the proposed standards reduce the number of required 
accessible elements below the number required by the 1991 Standards, 
the number of accessible elements in a facility subject to this part 
may be reduced in accordance with the requirements of the proposed 
standards.
    5. Amend 28 CFR part 35 by adding 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, unless the public entity can demonstrate 
that the use of a service animal would fundamentally alter the public 
entity's service, program, or activity.
    (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;
    (2) The animal is not housebroken or the animal's presence or 
behavior fundamentally alters the nature of the service the public 
entity provides; or
    (3) The animal poses a direct threat to the health or safety of 
others that cannot be eliminated by reasonable modifications.
    (c) If an animal is properly excluded. If a public entity properly 
excludes a service animal, 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) General requirements. The work or tasks performed by a service 
animal shall be directly related to the handler's disability. A service 
animal that accompanies an individual with a disability into a facility 
of a public entity shall be individually trained to do work or perform 
a task, housebroken, and under the control of its handler. A service 
animal shall have a harness, leash, or other tether.
    (e) Care or supervision of service animals. A public entity is not 
responsible for caring for or supervising a service animal.
    (f) Inquiries. A public entity shall not ask about the nature or 
extent of a person's disability, but can determine whether an animal 
qualifies as a service animal. For example, 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 
or licensed as a service animal.
    (g) Access to areas open to the public, program participants, and 
invitees. Individuals with disabilities who are accompanied by service 
animals may access all areas of a public entity's facility where 
members of the public, program participants and invitees are allowed to 
go, unless the public entity can demonstrate that individuals 
accompanied by service animals would fundamentally alter the public 
entity's service, program, or activity.
    (h) Fees or surcharges. A public entity shall not ask or require an 
individual with a disability to post a deposit, pay a fee or surcharge, 
or comply with other requirements not generally applicable to other 
citizens as a condition of permitting a service animal to accompany its 
handler in a public entity's facility, even if people accompanied by 
pets are required to do so. If a public entity normally charges its 
citizens for damage that they cause, a citizen with a disability may be 
charged for damage caused by his or her service animal.
    6. Amend 28 CFR part 35 by adding Sec.  35.137 to read as follows:


Sec.  35.137  Mobility devices.

    (a) Use of wheelchairs, scooters, and manually powered mobility 
aids. A public entity shall permit individuals with mobility 
impairments to use wheelchairs, scooters, walkers, crutches, canes, 
braces, or other similar devices designed for use by individuals with 
mobility impairments in any areas open to pedestrian use.
    (b) Other power-driven mobility devices. 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.
    (c) Development of policies permitting the use of other power-
driven mobility devices. A public entity shall establish policies to 
permit the use of other power-driven mobility devices by individuals 
with disabilities when it is reasonable to allow an individual with a 
disability to participate in a service, program, or activity. Whether a 
modification is reasonable to allow the use of a class of power-driven 
mobility device by an individual with a disability in specific venues 
(e.g., parks, courthouses, office buildings, etc.) shall be determined 
based on:
    (1) The dimensions, weight, and operating speed of the mobility 
device in relation to a wheelchair;
    (2) The risk of potential 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.
    (d) Inquiry into use of power-driven mobility device. 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.
    7. Amend 28 CFR part 35 by adding Sec.  35.138 to read as follows:


Sec.  35.138  Ticketing.

    (a) General. A public entity that sells tickets on a preassigned 
basis shall modify its policies, practices, or procedures to ensure 
that individuals with disabilities can purchase tickets for accessible 
seating during the same hours, through the same methods of 
distribution, and in the same types and numbers of ticketing sales 
outlets as other patrons, unless the modification would fundamentally 
alter the nature of the ticketing service, program, or activity.
    (b) Availability. Tickets for accessible seating shall be made 
available during all stages of ticket sales, including, but not limited 
to, presales, promotions, lotteries, wait-lists, and general sales.
    (c) Identification of accessible seating. If seating maps, plans, 
brochures, or other information is provided to the general public, 
wheelchair seating and companion seats shall be identified.
    (d) Notification of accessible seating locations. A public entity 
that sells or distributes tickets for seating at

[[Page 34505]]

assembly areas shall, upon inquiry, inform spectators with disabilities 
and their companions of the locations of all unsold or otherwise 
available accessible seating for any ticketed event at the facility.
    (e) Sale of season tickets or other tickets for multiple events. 
Season tickets or other tickets sold on a multi-event basis to 
individuals with disabilities and their companions shall be sold under 
the same terms and conditions as other tickets sold for the same series 
of events. Spectators purchasing tickets for accessible seating on a 
multi-event basis shall also be permitted to transfer tickets for 
single-event use by friends or associates in the same fashion and to 
the same extent as permitted other spectators holding tickets for the 
same type of ticketing plan.
    (f) Hold and release of accessible seating. A public entity may 
release unsold accessible seating to any person with or without a 
disability following any of the circumstances described below:
    (1) When all seating (excluding luxury boxes, club boxes, or 
suites) for an event has been sold;
    (2) When all seating in a designated area in the facility has been 
sold and the accessible seating being released is in the same 
designated area; or
    (3) When all seating in a designated price range has been sold and 
the accessible seating being sold is within the same designated price 
range. Nothing in this provision requires a facility to release 
wheelchair seats for general sale.
    (g) Ticket prices. The price of tickets for accessible seating 
shall not be set higher than for tickets to seating located in the same 
seating section for the same event. Accessible seating must be made 
available at all price levels for an event. If an existing facility has 
barriers to accessible seating at a particular price level for an 
event, then a percentage (determined by the ratio of the total number 
of seats at that price level to the total number of seats in the 
assembly area) of the number of accessible seats must be provided at 
that price level in an accessible location.
    (h) Prevention of fraudulent purchase of accessible seating. A 
public entity may not require proof of disability before selling a 
wheelchair space.
    (1) For the sale of single-event tickets, it is permissible to 
inquire whether the individual purchasing the wheelchair space uses a 
wheelchair.
    (2) For season tickets, subscriptions, or other multi-events, it is 
permissible to ask the individual to attest in writing that the 
wheelchair space is for an individual who utilizes a wheelchair. 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.
    (i) Purchasing multiple tickets. (1) Individuals with disabilities 
and their companions shall be permitted to purchase the same maximum 
number of tickets for an event per sales transaction as other 
spectators seeking to purchase seats for the same event. If there is an 
insufficient number of seats for all members of a party to sit 
together, seats shall be provided that are as close as possible to the 
wheelchair spaces. For accessible seating in a designated wheelchair 
area, a public entity shall provide up to three companion seats for 
each person with a disability who requires a wheelchair space, provided 
that at the time of purchase there are sufficient available wheelchair 
spaces.
    (2) For group sales, if a group includes one or more individuals 
who use a wheelchair, the group shall be placed in a seating area that 
includes wheelchair spaces 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.

Subpart D--Program Accessibility

    8. Amend Sec.  35.150 as follows:
    a. Redesignate paragraph (b)(2) as paragraph (b)(3);
    b. Add the words ``or acquisition'' after the word ``redesign'' in 
the first sentence of paragraph (b)(1) and add paragraphs (b)(2), 
(b)(4), and (b)(5) to read as follows:


Sec.  35.150  Existing facilities.

* * * * *
    (b) * * *
    (2) Safe harbor. If a public entity has constructed or altered 
elements in an existing facility 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 proposed standards, required to retrofit such elements 
to reflect incremental changes in the proposed standards.
* * * * *
    (4) Reduced scoping for existing facilities. For measures taken to 
comply with the program accessibility requirements of this section, 
existing facilities shall comply with the applicable requirements for 
alterations in Sec.  35.151 of this part, except as follows:
    (i) In addition to the provisions of section 240.2.1 of the 
proposed standards, where an existing play area provides elevated play 
components, an additional number of ground level play components may be 
substituted for the number of elevated play components that would have 
been required to comply with the provisions of section 240.2.2 of the 
proposed standards; and
    (ii) Where an existing swimming pool has at least 300 linear feet 
of swimming pool wall, it shall comply with the applicable requirements 
for swimming pools, except that it shall provide at least one 
accessible means of entry that complies with section 1009.2 or section 
1009.3 of the proposed standards.
    (5) Exemption for small facilities. For measures taken to comply 
with the program accessibility requirements of this section, existing 
facilities shall comply with the applicable requirements for 
alterations in Sec.  35.151 of this part, except as follows:
    (i) Where an existing play area has less than 1000 square feet, it 
shall be exempt from the provisions of section 240 of the proposed 
standards;
    (ii) Where an existing swimming pool has less than 300 linear feet 
of swimming pool wall, it shall be exempt from the provisions of 
section 242.2 of the proposed standards; and
    (iii) Where an existing sauna or steam room was designed and 
constructed to seat only two people, it shall be exempt from the 
provisions of Sec.  241 of the proposed standards.
* * * * *
    9. Revise Sec.  35.151 to read as follows:


Sec.  35.151  New construction and alterations.

    (a) Design and construction. (1) Each facility or part of a 
facility constructed by, on behalf of, or for the use of a public 
entity shall be designed and constructed in such manner that the 
facility or part of the facility is readily accessible to and usable by 
individuals with disabilities, if the construction was commenced after 
January 26, 1992.
    (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

[[Page 34506]]

be made accessible shall be made accessible to the extent that it is 
not structurally impracticable.
    (b) Alteration. (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 not 
apply to measures taken solely to comply with the program accessibility 
requirements of this section.
    (3) 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). 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 and scope of the 
overall alterations.
    (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 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 the 
principal 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, the public entity is not required to retrofit 
such elements to reflect incremental changes in the proposed 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 twenty 
percent (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, e.g., 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 a 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 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 after the effective date of this 
part 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. (1) For facilities on which 
construction commences before [date six months after the effective date 
of the final rule], design, construction, or alteration of facilities 
in conformance with the Uniform Federal Accessibility Standards (UFAS) 
(Appendix A to 41 CFR part 101-19.6) or with the Americans with 
Disabilities Act Accessibility Guidelines for Buildings and Facilities 
(Appendix A to the Department of Justice's final rule implementing 
title III of the ADA, 56 FR 35544) shall be deemed to comply with the 
requirements of this section with respect to those facilities, except 
that the elevator exemption contained at section 4.1.3(5) and section 
4.1.6(1)(j) 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

[[Page 34507]]

the facility or part of the facility is thereby provided.
    (2) Facilities on which construction commences on or after [date 
six months after the effective date of the final rule] shall comply 
with the proposed standards.
    (d) Scope of coverage. The proposed 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 in the text, advisory notes, appendix 
notes, and figures contained in the ADA Standards explain or illustrate 
the requirements of the rule, they do not establish enforceable 
requirements.
    (e) Social service establishments. Group homes, halfway houses, 
shelters, or similar social service establishments that provide 
temporary sleeping accommodations or residential dwelling units subject 
to the proposed standards shall comply with the provisions of the 
proposed standards that apply to residential facilities, including, but 
not limited to, the provisions in sections 233 and 809.
    (1) In sleeping rooms covered by this section with more than 
twenty-five beds, five percent (5%) minimum of the beds shall have 
clear floor space complying with section 806.2.3.
    (f) Housing at a place of education. Dormitories or residence halls 
operated by or on behalf of places of education that are subject to the 
proposed standards shall comply with the provisions applicable to 
transient lodging, including, but not limited to, the requirements for 
transient lodging guest rooms in sections 224 and 806.
    (g) Assembly areas. Assembly areas subject to the proposed 
standards shall comply with the provisions applicable to assembly 
areas, including, but not limited to, sections 221 and 804. In 
addition, assembly areas shall ensure that--
    (1) Wheelchair and companion seating locations are dispersed among 
all levels of the facility that are served by an accessible route;
    (2) Wheelchair and companion seating locations are not located on 
(or obstructed by) temporary platforms or other movable structures. 
When wheelchair seating locations are not required to accommodate 
people who use wheelchairs, individual, readily removable seats may be 
placed in those spaces;
    (3) Facilities that have more than 5,000 seats shall provide at 
least five wheelchair locations that are configured to provide at least 
three companion seats for each wheelchair space; and
    (4) Stadium-style movie theaters locate wheelchair seating spaces 
and companion seating 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 sixty percent (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 subject to the 
proposed standards shall comply with the provisions 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 rooms required by section 223.2.1 in a manner that 
enables patients with disabilities to have access to appropriate 
specialty services.
    (i) Curb ramps. (1) Newly constructed or altered streets, roads, 
and highways must contain curb ramps at any intersection having curbs 
or other barriers to entry from a street level pedestrian walkway.
    (2) Newly constructed or altered street level pedestrian walkways 
must contain curb ramps at intersections to streets, roads, or 
highways.
    10. Amend 28 CFR part 35 by adding Sec.  35.152 to read as follows:


Sec.  35.152  Detention and correctional facilities.

    (a) General. Public entities that are responsible for the operation 
or management of detention and correctional facilities, either directly 
or through contracts or other arrangements, shall comply with this 
section.
    (b) Discrimination prohibited. (1) Public entities shall ensure 
that qualified inmates or detainees with disabilities shall not, 
because that 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 unless the 
public entity can demonstrate that the required actions would result in 
a fundamental alteration or undue burden.
    (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 the public entity can demonstrate 
that it is appropriate to make an exception for a specific individual, 
a public entity--
    (i) Should not place inmates or detainees with disabilities in 
inappropriate security classifications because no accessible cells or 
beds are available;
    (ii) Should not place inmates or detainees with disabilities in 
designated medical areas unless they are actually receiving medical 
care or treatment;
    (iii) 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
    (iv) Should 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.
    (c) Alterations to detention and correctional facilities. 
Alterations to jails, prisons, and other detention and correctional 
facilities will comply with the requirements of Sec.  35.151(b). 
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 (i.e., cells other than 
those where alterations are originally planned), provided that each 
substitute cell--
    (1) Is located within the same facility;
    (2) Is integrated with other cells to the maximum extent feasible; 
and
    (3) 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.

Subpart E--Communications

    11. Revise Sec.  35.160 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 
with disabilities, and companions thereof are as effective as 
communications with others.
    (2) For purposes of this section, companion means a family member, 
friend, or associate of a program participant who, along with the 
participant, is an appropriate person with whom the public entity 
should communicate.
    (b) A public entity shall furnish appropriate auxiliary aids and 
services

[[Page 34508]]

where necessary to afford individuals with disabilities and their 
companions who are individuals with disabilities, an equal opportunity 
to participate in, and enjoy the benefits of, a service, program, or 
activity conducted by a public entity.
    (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 individual accompanying an 
individual with a disability to interpret or facilitate communication, 
except in an emergency involving a threat to public safety or welfare, 
or unless 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.
    (d) Video interpreting services (VIS). A public entity that chooses 
to provide qualified interpreters via VIS shall ensure that it 
provides--
    (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 interpreter's head and the participating individual's head, arms, 
hands, and fingers, regardless of his body position;
    (3) Clear transmission of voices; and
    (4) Training to nontechnicians so that they may quickly and 
efficiently set up and operate the VIS.
    (e) Sports stadiums. One year after the effective date of this 
regulation, sports stadiums that have a seating capacity of 25,000 or 
more shall provide captioning on the scoreboards and video monitors for 
safety and emergency information.
    12. 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 for 
receiving and directing incoming telephone calls, that automated 
attendant system must provide effective communication with individuals 
using auxiliary aids and services, including TTYs or a 
telecommunications relay system.
    (c) A public entity shall respond to telephone calls from a 
telecommunications relay service established under title IV of the 
Americans with Disabilities Act in the same manner that it responds to 
other telephone calls.

Subpart F--Compliance Procedures

    13. 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 either the 
appropriate designated agency or agency that has section 504 
jurisdiction or to 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.
* * * * *
    14. 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 based on information indicating a possible failure to comply 
with the nondiscrimination requirements of this part.
    (c) Where appropriate, the designated agency shall attempt informal 
resolution of any matter being investigated under this section, and, if 
resolution is not achieved 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; 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 Sec.  203 of the Act, whether or not the designated agency finds a 
violation.

Subpart G--Designated Agencies

    15. 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.

    Dated: May 30, 2008.
Michael B. Mukasey,
Attorney General.
[FR Doc. E8-12622 Filed 6-16-08; 8:45 am]
BILLING CODE 4410-13-P