Tuesday,
June 17, 2008
Part III
Department of
Justice
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
jlentini on PROD1PC65 with PROPOSALS3
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\17JNP3.SGM 17JNP3
34466 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
DEPARTMENT OF JUSTICE 22031–0846. Overnight deliveries redacted, all or part of that comment
should be sent to the Disability Rights may not be posted on http://
28 CFR Part 35 Section, Civil Rights Division, U.S. www.regulations.gov.
[CRT Docket No. 105; AG Order No. 2967– Department of Justice, located at 1425 Personal identifying information
2008] New York Avenue, NW., Suite 4039, identified and located as set forth above
Washington, DC 20005. All comments will be placed in the agency’s public
RIN 1190–AA46 will be made available for public docket file, but not posted online.
viewing online at http:// Confidential business information
Nondiscrimination on the Basis of identified and located as set forth above
www.regulations.gov.
Disability in State and Local will not be placed in the public docket
Government Services FOR FURTHER INFORMATION CONTACT:
file. If you wish to inspect the agency’s
Janet L. Blizard, Deputy Chief, Disability
AGENCY: Department of Justice, Civil public docket file in person by
Rights Section, Civil Rights Division,
Rights Division. appointment, please see the FOR
U.S. Department of Justice, at (202) 307–
ACTION: Notice of proposed rulemaking. FURTHER INFORMATION CONTACT
0663 (voice or TTY). This is not a toll-
paragraph.
free number. Information may also be
SUMMARY: The Department of Justice
obtained from the Department’s toll-free Overview
(Department) is issuing this notice of
ADA Information Line at (800) 514– Throughout this NPRM, the current,
proposed rulemaking (NPRM) in order
0301 (voice) or (800) 514–0383 (TTY). legally enforceable ADA Standards will
to: Adopt enforceable accessibility This rule is also available in an
standards under the Americans with be referred to as the ‘‘1991 Standards.’’
accessible format on the ADA Home 28 CFR part 36, App. A, 56 FR 35544
Disabilities Act of 1990 (ADA) that are Page at http://www.ada.gov. You may
‘‘consistent with the minimum (July 26, 1991), modified in part 59 FR
obtain copies of this rule in large print 2674 (Jan. 18, 1994). The Access Board’s
guidelines and requirements issued by or on computer disk by calling the ADA
the Architectural and Transportation 2004 revised guidelines will be referred
Information Line at the number listed to as the ‘‘2004 ADAAG.’’ 69 FR 44084
Barriers Compliance Board’’ (Access above.
Board); and perform periodic reviews of (July 23, 2004), as amended (editorial
any rule judged to have a significant SUPPLEMENTARY INFORMATION: changes only) at 70 FR 45283 (Aug. 5,
economic impact on a substantial 2005). The revisions now proposed in
Electronic Submission and Posting of the NPRM, based on the 2004 ADAAG,
number of small entities, and a Public Comments
regulatory assessment of the costs and are referred to in the preamble as the
benefits of any significant regulatory You may submit electronic comments ‘‘proposed standards.’’
action as required by the Regulatory to http://www.regulations.gov. When In performing the required periodic
Flexibility Act, as amended by the submitting comments electronically, review of its existing regulations, the
Small Business Regulatory Enforcement you must include CRT Docket No. 105 Department has reviewed its title II
Fairness Act of 1996 (SBREFA). in the subject box, and you must regulation section by section, and, as a
In this NPRM, the Department include your full name and address. result, proposes several clarifications
proposes to adopt Parts I and III of the Please note that all comments and amendments in this NPRM. In
Americans with Disabilities Act and received are considered part of the addition, the Department’s initial,
Architectural Barriers Act Accessibility public record and made available for formal benefit-cost analysis dealing with
Guidelines (2004 ADAAG), which were public inspection online at http:// the Department’s NPRMs for both titles
published by the Access Board on July www.regulations.gov. Such information II and III is included in this NPRM. See
23, 2004. Prior to its adoption by the includes personal identifying E.O. 12866, 58 FR 51735 (Sept. 30,
Department, the 2004 ADAAG is information (such as your name, 1993), amended by E.O. 13258, 67 FR
effective only as guidance to the address, etc.) voluntarily submitted by 9385 (Feb. 26, 2002), and E.O. 13422, 72
Department; it has no legal effect on the the commenter. FR 2763 (Jan. 18, 2007); 5 U.S.C. 601,
If you want to submit personal 603, 610(a); and OMB Circular A–4,
public until the Department issues a
identifying information (such as your http://www.whitehouse.gov/omb/
final rule adopting the revised ADA
name, address, etc.) as part of your circulars/a004/a-4.pdf. The NPRM was
Standards (proposed standards).
Concurrently with the publication of comment, but do not want it to be submitted to the Office of Management
this NPRM, the Department is posted online, you must include the and Budget (OMB), Office of
publishing an NPRM to amend its title phrase ‘‘PERSONAL IDENTIFYING Information and Regulatory Affairs, for
III regulation, which covers public INFORMATION’’ in the first paragraph review and approval prior to
accommodations and commercial of your comment. You must also locate publication in the Federal Register.
facilities, in order to adopt the 2004 all the personal identifying information
you do not want posted online in the Purpose
ADAAG as its proposed standards for
first paragraph of your comment and On July 26, 1990, President George H.
title III entities, to make amendments to
identify information you want redacted. W. Bush signed into law the Americans
the title III regulation for consistency
If you want to submit confidential with Disabilities Act, 42 U.S.C. 12101 et
with title II, and to make amendments
business information as part of your seq., a comprehensive civil rights law
that reflect the collective experience of
comment but do not want it posted prohibiting discrimination on the basis
sixteen years of enforcement of the
online, you must include the phrase of disability. At the beginning of his
ADA.
‘‘CONFIDENTIAL BUSINESS administration, President George W.
DATES: All comments must be received INFORMATION’’ in the first paragraph Bush underscored the nation’s
jlentini on PROD1PC65 with PROPOSALS3
by August 18, 2008. of your comment. You must also commitment to ensuring the rights of
ADDRESSES: Submit electronic prominently identify confidential over 50 million individuals with
comments and other data to http:// business information to be redacted disabilities nationwide by announcing
www.regulations.gov. Address written within the comment. If a comment has the New Freedom Initiative (available at
comments concerning this NPRM to: so much confidential business http://www.whitehouse.gov/infocus/
ADA NPRM, P.O. Box 2846, Fairfax, VA information that it cannot be effectively newfreedom). The Access Board’s
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34467
publication of the 2004 ADAAG is the based upon the version of ADAAG transportation services that are subject
culmination of a long-term effort to published by the Access Board on the to subtitle B of title II should be
facilitate ADA compliance and same date. Under the current regulation, reminded that the Department’s
enforcement by eliminating, to the title II entities are required to comply regulation, at 28 CFR 35.102, provides
extent possible, inconsistencies among either with the 1991 Standards or with that—
federal accessibility requirements and the Uniform Federal Accessibility (a) Except as provided in paragraph (b) of
between federal accessibility Standards (UFAS), 41 CFR part 101– this section, this part applies to all services,
requirements and state and local 19.6, App. A—which many public programs, and activities provided or made
building codes. In support of this effort, entities were accustomed to following available by public entities.
the Department is announcing its under section 504—with respect to (b) To the extent that public transportation
intention to adopt standards consistent newly constructed or altered facilities. services, programs, and activities of public
with Parts I and III of the 2004 ADAAG entities are covered by subtitle B of title II of
Relationship to Other Laws the ADA, 42 U.S.C. 12141, they are not
as the ADA Standards for Accessible subject to the requirements of this part.
Design. To facilitate this process, the The Department of Justice regulation
Department is seeking public comment implementing title II, 28 CFR 35.103, Nothing in this proposed rule alters
on the issues discussed in this notice. provides: that provision. To the extent that the
public transportation services,
The ADA and Department of Justice (a) Rule of interpretation. Except as
programs, and activities of public
Regulations otherwise provided in this part, this part
shall not be construed to apply a lesser entities are covered by subtitle B of title
The ADA broadly protects the rights standard than the standards applied under II of the ADA, they are subject to the
of individuals with disabilities in title V of the Rehabilitation Act of 1973, 29 regulation of the Department of
employment, access to state and local U.S.C. 791 et seq., or the regulations issued Transportation (DOT) at 49 CFR part 37
government services, places of public by federal agencies pursuant to that title. and are not covered by this proposed
accommodation, transportation, and (b) Other laws. This part does not rule. Matters not covered by subtitle B
other important areas of American life invalidate or limit the remedies, rights, and are covered by this rule. In addition,
and, in addition, requires newly procedures of any other federal, state or local activities not specifically addressed by
laws (including state common law) that DOT’s ADA regulation may be covered
designed and constructed or altered
provide greater or equal protection for the
state and local government facilities, by DOT’s regulation implementing
rights of individuals with disabilities or
public accommodations, and individuals associated with them. section 504 for its federally assisted
commercial facilities to be readily programs and activities at 49 CFR part
accessible to and usable by individuals Nothing in this proposed rule will 27. Like other programs of public
with disabilities. 42 U.S.C. 12101 et seq. alter this relationship. The Department entities that are also recipients of federal
Under the ADA, the Department is recognizes that public entities subject to financial assistance, those programs
responsible for issuing regulations to title II of the ADA may also be subject would be covered by both the section
implement title II and title III of the Act, to title I of the ADA, which prohibits 504 regulation and this part. Airports
except to the extent that transportation discrimination on the basis of disability operated by public entities are not
providers subject to title II or title III are in employment, section 504, which subject to DOT’s ADA regulation, but
regulated by the Department of prohibits discrimination on the basis of they are subject to subpart A of title II
Transportation. Id. at 12134. disability in the programs and activities and to this rule.
The Department is also proposing of recipients of federal financial
assistance, and other federal statutes The Roles of the Access Board and the
amendments to its title III regulation,
such as the Air Carrier Access Act, 49 Department of Justice
which prohibits discrimination on the
basis of disability in public U.S.C. 41705, and the Fair Housing Act, The Access Board was established by
accommodations and commercial 42 U.S.C. 3601 et seq. Compliance with section 502 of the Rehabilitation Act of
facilities, published concurrently with the Department’s regulations under the 1973, 29 U.S.C. 792. The Board consists
the publication of this NPRM, in this ADA does not necessarily ensure of thirteen public members appointed
issue of the Federal Register. compliance with other federal statutes. by the President, of whom the majority
Title II applies to state and local Public entities that are subject both to must be individuals with disabilities,
government entities, and, in Subtitle A, the Department’s regulations and to and the heads of twelve federal
protects qualified individuals with regulations published by other federal departments and agencies specified by
disabilities from discrimination on the agencies must ensure that they comply statute, including the heads of the
basis of disability in services, programs, with the requirements of both Department of Justice and the
and activities provided by state and regulations. If there is a direct conflict Department of Transportation.
local government entities. Title II between the regulations, the regulation Originally, the Access Board was
extends the prohibition of that provides greater accessibility will established to develop and maintain
discrimination established by section prevail. When different statutes apply to accessibility guidelines for federally
504 of the Rehabilitation Act of 1973, as entities that routinely interact, each funded facilities under the Architectural
amended, 29 U.S.C. 794 (section 504), to entity must follow the regulation that Barriers Act of 1968 (ABA), 42 U.S.C.
all activities of state and local specifically applies to it. For example, a 4151 et seq. The passage of the ADA
governments regardless of whether these public airport is a title II facility that expanded the Access Board’s
entities receive federal financial houses air carriers subject to the Air responsibilities. The ADA requires the
assistance. 42 U.S.C. 12131–65. Carrier Access Act (ACAA). The public Access Board to ‘‘issue minimum
On July 26, 1991, the Department airport operator would comply with the guidelines that shall supplement the
jlentini on PROD1PC65 with PROPOSALS3
issued its final rules implementing title title II requirements, not with the ACAA existing Minimum Guidelines and
II and title III, which are codified at 28 requirements. Conversely, the air carrier Requirements for Accessible Design for
CFR part 35 (title II) and part 36 (title is required to comply with the ACAA, purposes of subchapters II and III of this
III). Appendix A of the title III not with the ADA. chapter * * * to ensure that buildings,
regulation, at 28 CFR part 36, contains In addition, public entities (including facilities, rail passenger cars, and
the current 1991 Standards, which were AMTRAK) that provide public vehicles are accessible, in terms of
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34468 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
architecture and design, transportation, industry, the building code community, ADAAG by soliciting public input on
and communication, to individuals with state and local government entities, and issues relating to the potential
disabilities.’’ 42 U.S.C. 12204. The ADA individuals with disabilities. In 1999, application of the Access Board’s
requires the Department to issue based largely on the report and revisions once the Department adopts
regulations that include enforceable recommendations of the advisory them as revised standards; and (2) to
accessibility standards applicable to committee,1 the Access Board issued a request background information that
facilities subject to title II or title III that proposed rule to jointly update and would assist the Department in
are consistent with the minimum revise its ADA and ABA accessibility preparing a regulatory analysis under
guidelines issued by the Access Board. guidelines. 64 FR 62248 (Nov. 16, 1999). the guidance provided in OMB Circular
Id. at 12134, 12186. In response to its rule, the Access Board A–4, http://www.whitehouse.gov/omb/
The Department was extensively received more than 2,500 comments circulars/a004/a-4.pdf, Sections D
involved in the development of the 2004 from individuals with disabilities, (Analytical Approaches) and E
ADAAG. As a federal member of the affected industries, state and local (Identifying and Measuring Benefits and
Access Board, the Attorney General’s governments, and others. The Access Costs). While underscoring that the
representative voted to approve the Board provided further opportunity for Department, as a member of the Access
revised guidelines. Although the participation by holding public hearings Board, had already reviewed comments
enforceable standards issued by the throughout the nation. The Access provided to the Access Board during its
Department under title II and title III Board worked vigorously from the development of the 2004 ADAAG, the
must be consistent with the minimum beginning to harmonize the ADA and Department specifically requested
guidelines published by the Access ABA Accessibility Guidelines with public comment on the potential
Board, it is the responsibility solely of industry standards and model codes application of the 2004 ADAAG to
the Attorney General to promulgate that form the basis for many state and existing facilities. The extent to which
standards and to interpret and enforce local building codes. The Access Board the 2004 ADAAG is used with respect
those standards. released an interim draft of its to the program access requirement in
The ADA also requires the guidelines to the public on April 2, title II (like the readily achievable
Department to develop regulations with 2002, 67 FR 15509, in order to provide barrier removal requirement applicable
respect to existing facilities subject to an opportunity for entities with model to existing facilities under title III) is
title II (Subtitle A) and title III. How and codes to consider amendments that solely within the discretion of the
to what extent the Access Board’s would promote further harmonization. Department. The ANPRM dealt with the
guidelines are used with respect to the By the date of its final publication on Department’s responsibilities under
readily achievable barrier removal July 23, 2004, 69 FR 44084, the 2004 both title II and title III.
requirement applicable to existing ADAAG had been the subject of
facilities under title III of the ADA and Public response to the ANPRM was
extraordinary public participation and
to the provision of program accessibility extraordinary. The Department
review.
under title II of the ADA are solely In addition, the Access Board extended the comment deadline by four
within the discretion of the Department amended the ADAAG four times since months at the public’s request. 70 FR
of Justice. 1998. In 1998, it added specific 2992 (Jan. 19, 2005). By the end of the
guidelines on state and local extended comment period, the
The Revised Guidelines (2004 ADAAG) Department had received more than 900
government facilities, 63 FR 2000 (Jan.
Part I of the 2004 ADAAG provides 13, 1998), and building elements comments covering a broad range of
so-called ‘‘scoping’’ requirements for designed for use by children, 63 FR issues. Most of the comments responded
facilities subject to the ADA; ‘‘scoping’’ 2060 (Jan. 13, 1998). Subsequently, the to questions specifically posed by the
is a term used in the 2004 ADAAG to Access Board added specific guidelines Department, including issues involving
describe requirements (set out in Parts on play areas, 65 FR 62498 (Oct. 18, the application of the 2004 ADAAG
I and II) that prescribe what elements 2000), and on recreation facilities, 67 FR once the Department adopts it, and cost
and spaces—and, in some cases, how 56352 (Sept. 3, 2002). information to assist the Department in
many of them—must comply with the These amendments to the ADAAG its regulatory assessment. The public
technical specifications. Part II provides have not previously been adopted by the provided information on how to assess
scoping requirements for facilities Department as ADA Standards. Through the cost of compliance by small entities,
subject to the ABA (i.e., facilities this NPRM, the Department is office buildings, hotels and motels,
designed, built, altered, or leased with announcing its intention to publish a assembly areas, hospitals and long-term
federal funds). Part III provides uniform proposed rule that will adopt revised care facilities, residential units,
technical specifications for facilities ADA Standards consistent with the recreational facilities, and play areas.
subject to either statute. This revised 2004 ADAAG, including all of the Comments addressed the effective date
format is designed to eliminate amendments to the ADAAG since 1998. of the proposed standards, the triggering
unintended conflicts between the two event by which the effective date is
The Advance Notice of Proposed measured in new construction, and
federal accessibility standards and to
Rulemaking variations on a safe harbor, which
minimize conflicts between the federal
regulations and the model codes that The Department published an would excuse elements in compliance
form the basis of many state and local advance notice of proposed rulemaking with the 1991 Standards from
building codes. (ANPRM) regarding its ADA regulation compliance with the proposed
The revised 2004 ADAAG is the on September 30, 2004, 69 FR 58768, for standards. Comments responded to
culmination of a ten-year effort to two reasons: (1) To begin the process of questions regarding elements scoped for
jlentini on PROD1PC65 with PROPOSALS3
improve ADA compliance and adopting the Access Board’s 2004 the ‘‘first time’’ in the 2004 ADAAG,
enforcement. In 1994, the Access Board including detention and correctional
1 After a two-year process of collaboration with
began the process of updating the facilities, recreational facilities and play
the Access Board, the Advisory Committee issued
original ADAAG by establishing an its Recommendations for a New ADAAG in
areas, as well as proposed additions to
advisory committee composed of September 1996, available at http://www.access- the Department’s regulation for items
members of the design and construction board.gov/pubs.htm. such as free-standing equipment.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34469
Comments also dealt with the specific Access Board for further consideration than $100 million when using the 1991
requirements of the 2004 ADAAG. of the particular feature or facility. In Standards as the comparative baseline:
Many commenters requested such a case, the Department would Side reach; water closet clearances in
clarification of or changes to the delay adoption of the accessibility single-user toilet rooms with in-
Department’s title II regulation. requirement for the particular feature or swinging doors; stairs; elevators;
Commenters observed that now, more facility in question in its final rule and location of accessible routes to stages;
than seventeen years after the enactment await Access Board action before accessible attorney areas and witness
of the ADA, as facilities are becoming moving to consider any final action. stands; assistive listening systems; and
physically accessible to individuals Regulatory Impact Analysis. An initial accessible teeing grounds, putting
with disabilities, the Department needs regulatory impact analysis of the greens, and weather shelters at golf
to focus on second-generation issues benefits and costs of a proposed rule is courses. However, this baseline figure
that ensure individuals with disabilities required by Executive Order 12866 (as does not take into account the fact that,
actually gain access to the accessible amended by Executive Order 13258 and since 1991, various model codes and
elements. So, for example, commenters Executive Order 13422). A full benefit- consensus standards—such as the
asked the Department to focus on such cost analysis is required of any model International Building Codes
issues as ticketing in assembly areas and regulatory action that is deemed to be (‘‘IBC’’) published by the International
reservations of boat slips. The public significant—that is, a regulation that Codes Council and the consensus
asked about captioning and the division will have an annual effect of $100 accessibility standards developed by the
of responsibility between the million or more on the economy. See American National Standards Institute
Department and the Access Board for OMB Circular A–4; Regulatory (‘‘ANSI’’)—have been adopted by a
fixed and non-fixed (or free-standing) Flexibility Act of 1980, 5 U.S.C. 601, majority of states (in whole or in part)
equipment. Finally, commenters asked 603, as amended by the SBREFA, 5 and that these codes have provisions
for clarification on some issues in the U.S.C. 610(a). mirroring the substance of the
existing regulations, such as title III’s Early in the rulemaking process, the Department’s proposed regulations.
requirements regarding service animals. Department concluded that the Indeed, such regulatory overlap is
All of the issues raised in the public economic impact of its adoption of the intentional since harmonization among
comments are addressed, in turn, in this 2004 ADAAG as proposed standards for federal accessibility standards, state and
NPRM or in the NPRM for title III. title II and title III was likely to exceed local building codes, and model codes
Issues involving title III of the ADA, the threshold for significant regulatory is one of the goals of the Department’s
such as readily achievable barrier actions of $100 million. The Department rulemaking efforts.
removal, are addressed in the NPRM for has completed its initial regulatory
title III, published concurrently with impact analysis measuring the Even though the 1991 Standards are
this NPRM in this issue of the Federal incremental benefits and costs of the an appropriate baseline to compare the
Register. proposed standards; the initial new requirements against, since they
regulatory impact analysis is addressed represent the current set of uniform
Background (SBREFA, Regulatory federal regulations governing
at length with responses to public
Flexibility Act, and Executive Order) accessibility, in practice it is likely that
comments from the ANPRM in
Reviews many public and private facilities across
Appendix B.
The Department must provide two The public may notice differences the country are already being built or
types of assessments as part of its between the Department’s regulatory altered in compliance with the
NPRM: an analysis of the benefits and impact analysis and the Access Board’s Department’s proposed alterations
costs of adopting the 2004 ADAAG as its regulatory assessment of the 2004 standards with respect to these
proposed standards, and a periodic ADAAG. The differences in framework elements. Because the model codes are
review of its existing regulations to and approach result from the differing voluntary, public entities often modify
consider their impact on small entities, postures and responsibilities of the or carve out particular standards when
including small businesses, small Department and the Access Board. First, adopting them into their laws, and even
nonprofit organizations, and small the breadth of the proposed changes when the standards are the same, local
governmental jurisdictions. E.O. 12866, assessed in Appendix A of this NPRM officials often interpret them differently.
58 FR 51735 (Sept. 30, 1993), as is greater than in the Access Board’s The mere fact that a state or local
amended by E.O. 13258, 67 FR 9385 assessments related to the 2004 government has adopted a version of the
(Feb. 26, 2002) and E.O. 13422, 72 FR ADAAG. Unlike the Access Board, the IBC does not necessarily mean that
2763 (Jan. 18, 2007); Regulatory Department must examine the effect of facilities within that jurisdiction are
Flexibility Act of 1980, 5 U.S.C. 601, the proposed standards not only on legally subject to its accessibility
603, as amended by the Small Business newly constructed or altered facilities, provisions. Because of these
Regulatory Enforcement Fairness Act of but also on existing facilities. Second, complications, and the inherent
1996 (SBREFA), 5 U.S.C. 610(a); OMB whereas the Access Board issued difficulty of determining which baseline
Circular A–4; and E.O. 13272, 67 FR separate rules for many of the is the most appropriate for each
53461 (Aug. 13, 2002). differences between the 1991 Standards provision, the RIA accompanying this
The Department leaves open the and the 2004 ADAAG (e.g., play areas rulemaking compares the costs and
possibility that, as a result of the receipt and recreation facilities), the benefits of the proposed requirements to
of comments on an issue raised by the Department is proposing to adopt several alternative baselines, which
2004 ADAAG, or if the Department’s several years of revisions in a single reflect various versions of existing
Regulatory Impact Analysis reveals that rulemaking. building codes. In addition, since the
jlentini on PROD1PC65 with PROPOSALS3
the costs of making a particular feature According to the Department’s initial Department is soliciting comment on
or facility accessible are Regulatory Impact Analysis (‘‘RIA’’), it these eight particular provisions with
disproportionate to the benefits to is estimated that the incremental costs high net costs, the Department believes
persons with disabilities, the Attorney of the proposed requirements for each of it is useful to further discuss the
General, as a member of the Access the following eight existing elements potential impact of alternative baselines
Board, may return the issue to the will exceed monetized benefits by more on these particular provisions.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34470 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
For example, the Department’s with the proposed regulations (side proposed requirement mandates that,
proposed standards for existing stairs reach, water closet clearances in single- when a direct circulation path (for
and elevators have identical user toilet rooms with in-swinging doors, audience members) connects the seating
counterparts in one or more IBC stairs, elevators, location of accessible area to a stage, the accessible route to
versions put in place before the 2004 routes to stages, accessible attorney the stage must also be direct.
ADAAG (2000 or 2003). Please note, areas and witness stands, assistive The Department has generally
however, that the IBC 2006 version listening systems, and accessible teeing determined that the overall costs for this
bases a number of its provisions on grounds, putting greens, and weather requirement are relatively high in the
guidelines in the 2004 ADAAG. These shelters at golf courses), as well as alterations context, due to the expense
IBC versions, in turn, have been adopted additional practical benefits from these of having to provide a lift or ramp to
collectively by forty-six (46) states and requirements, which are often difficult access the stage area directly, regardless
the District of Columbia on a statewide to adequately monetize. of which baseline is used for the
basis. In the four (4) remaining states The Department does not have analysis. The Department, however, has
(Colorado, Delaware, Illinois, and statutory authority to modify the 2004 had difficulty in estimating the real
Mississippi), while IBC adoption is left ADAAG; instead, the ADA requires the costs of this requirement because of a
to the discretion of local jurisdictions, Attorney General to issue regulations lack of information about whether
the vast majority of these local implementing the ADA that are colleges, elementary and secondary
jurisdictions have elected to adopt IBC ‘‘consistent with’’ the ADA Accessibility schools, and entertainment venues now
as their local code. Thus, given that Guidelines issued by the Access Board. routinely provide such access when
nearly all jurisdictions in the country See 42 U.S.C. 12134(c), 12186(c). As they are altering existing auditoriums or
currently enforce a version of the IBC as noted above in other parts of this how frequently such alterations occur.
their building code, and to the extent preamble, the Department leaves open Also, the Department currently lacks
that the IBC building codes may be the possibility of seeking further sufficient data or other sources with
settled in this area and would not be consideration by the Access Board of which to quantify the benefits that
further modified to be consistent if they particular issues raised by the 2004 accrue to students and other persons
differ from the final version of these ADAAG based on disproportionate costs with disabilities who, as a result of
regulations, the incremental costs and and compared to benefits and public direct access to stages, would be able to
benefits attributable to the Department’s comments. The Access Board did not participate fully and equally in
proposed regulations governing have the benefit of our RIA or public graduation exercises and other events.
alterations to existing stairs and comment on our RIA as it pertains to the Question 3: The Department would
elevators may be less significant than 2004 ADAAG. welcome information from operators of
the RIA suggests over the life of the Question 2: The Department would auditoriums on the likelihood that their
regulation. welcome comment on whether any of auditoriums will be altered in the next
In a similar vein, consideration of an the proposed standards for these eight fifteen years, and, if so, whether such
alternate IBC/ANSI baseline would also areas (side reach, water closet alterations are likely to include
likely lower the incremental costs and clearances in single-user toilet rooms accessible and direct access to stages. In
benefits for five other proposed with in-swinging doors, stairs, elevators, addition, the Department would like
standards (side reach; water closet location of accessible routes to stages, specific information on whether,
clearances in single-user toilet rooms accessible attorney areas and witness because of local law or policy,
with in-swinging doors; location of stands, assistive listening systems, and auditorium operators are already
accessible routes to stages; accessible accessible teeing grounds, putting providing a direct accessible route to
attorney areas and witness stands; and greens, and weather shelters at golf their stages. (The Department is also
assistive listening systems), albeit to a courses) should be raised with the interested in whether having to provide
lesser extent. Each of these proposed Access Board for further consideration, a direct access to the stage would
standards has a counterpart in either in particular as applied to alterations. encourage operators of auditoriums to
Chapter 11 of one or more versions of Stages. The proposed requirement to postpone or cancel the alterations of
the IBC, ANSI A117.1, or a functionally provide direct access to stages their facilities.) The Department also
equivalent state accessibility code. represents an effort to ensure that seeks information on possible means of
While IBC Chapter 11 and ANSI A117.1 individuals with disabilities are able to quantifying the benefits that accrue to
have yet not been as widely adopted as participate in programs in an integrated persons with disabilities from this
some other IBC chapters, the RIA setting. Under the current 1991 proposed requirement or on its
nonetheless still estimates that between Standards, a compliant accessible route importance to them. To the extent that
15% and 35% of facilities nationwide connecting seating locations to such information cannot be quantified,
are already covered by IBC/A117.1 performing areas is permitted to go the Department welcomes examples of
provisions that mirror these five outside the assembly area and make use personal or anecdotal experience that
proposed standards. It is thus expected of an indirect interior accessible route to illustrate the value of this requirement.
that the incremental costs and benefits access the stage area. As a result, even The Department’s RIA also estimates
for these proposed standards may also when other audience members are able significant costs, regardless of the
be lower than the costs and benefits to access a stage directly via stairs in baseline used, for the proposed
relative to the 1991 Standards baseline. order to participate in ceremonies, skits, requirement that court facilities must
Question 1: The Department believes or other interactive on-stage events, provide an accessible route to a witness
it would be useful to solicit input from persons with mobility disabilities may stand or attorney area and clear floor
the public to inform us on the be required to use an inconvenient space to accommodate a wheelchair.
jlentini on PROD1PC65 with PROPOSALS3
anticipated costs or benefits for certain indirect entrance to the stage. As These costs arise both in the new
requirements. The Department therefore graduates or award recipients, they may construction and alteration contexts. If
invites comment as to what actual costs be required to part company with their the witness stand is raised, then either
and benefits would be for these eight peers, to make their way to the stage a ramp or lift must be provided to
existing elements, in particular as alone, and to make a conspicuous ensure access to the witness stand.
applied to alterations, in compliance entrance. To address this situation, the While the RIA quantifies the benefits for
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34471
this proposed requirement (as it does for hear or understand the audible portion existing golf courses should be reduced
all of the proposed requirements) of the presentation. with little or no practical loss in
primarily in terms of time savings, the From an economic perspective, the accessibility.
Department fully appreciates that such cost of a single hearing-aid compliant Question 6: The Department seeks
a methodology does not capture the ALS is not high—about $500 more than information from the owners and
intangible benefits that accrue when a non-compliant system—and compliant operators of golf courses, both public
persons with mobility disabilities are equipment is readily available on the and private, on the extent to which their
able to participate in the court process retail market. As estimated in the RIA, courses already have golf car passages
as conveniently as any other witness or the high overall costs for the revised to teeing grounds, putting greens, and
party. Without access to the witness technical requirements for ALS are weather shelters, and, if so, whether
stand, for example, a wheelchair user, or instead driven by the assumption that they intend to avail themselves of the
a witness who uses other mobility entities with large assembly areas (such proposed exception.
devices such as a walker or crutches, as universities, stadiums, and Analysis of impact on small entities.
may have to sit at floor level. If the auditoriums) will be required to The second type of analysis that the
witness with a mobility disability purchase a relatively large number of Department has undertaken is a review
testifies from a floor level position, the compliant systems. On the other hand, of its existing regulations for title II and
witness could be placed at a the overall scoping for ALS has been title III in order to consider the impact
disadvantage in communicating with reduced in the Department’s proposed of those regulations on small entities.
the judge and jury, who may no longer requirement, thus mitigating the cost to The review requires agencies to
be able to see the witness as easily, or, covered entities. The proposed revision consider five factors: (1) The continued
potentially, at all. This may create a to the technical requirement merely need for the rule; (2) the nature of
reciprocal difficulty for the judge and specifies that 25% (or at least two) of complaints or comments received
jurors who lose the sightline normally the required ALS receivers must be concerning the rule from the public; (3)
provided by the raised witness stand hearing-aid compatible. The RIA the complexity of the rule; (4) the extent
that enables them to see and hear the estimates that a significant part of the to which the rule overlaps, duplicates,
witness in order to evaluate his or her cost of this requirement will come from or conflicts with other federal rules,
demeanor and credibility—difficulty the replacement of individual ALS and, to the extent feasible, with state
that redounds to the detriment of receivers and system maintenance. and local governmental rules; and (5)
litigants themselves and ultimately our Question 5: The Department seeks the length of time since the rule has
system of justice. information from arena and assembly been evaluated or the degree to which
area administrators on their experiences technology, economic conditions, or
Question 4: The Department in managing ALS. In order to evaluate other factors have changed in the area
welcomes comment on how to measure the accuracy of the assumptions in the affected by the rule. 5 U.S.C. 610(b).
or quantify the intangible benefits that RIA relating to ALS costs, the Based on these factors, the agency
would accrue from accessible witness Department welcomes particular should determine whether to continue
stands. We particularly invite anecdotal information on the life expectancy of the rule without change or to amend or
accounts of the courtroom experiences ALS equipment and the cost of ongoing rescind the rule to minimize any
of individuals with disabilities who have maintenance. significant economic impact of the rule
encountered inaccessible witness The Department’s proposed on a substantial number of small
stands, as well as the experiences of requirements mandate an accessible entities. Id. at 610(a).
state and local governments in making (pedestrian) route that connects all In performing this review, the
witness stands accessible, either in the accessible elements within the Department has gone through its
new construction or alteration context. boundary of the golf course and facility, regulation section by section, and, as a
Under the 1991 Standards, Assistive including teeing grounds, putting result, proposes several clarifications
Listening Systems (‘‘ALS’’) are required greens, and weather shelters. Requiring and amendments in this NPRM.
in courtrooms and in other settings access to necessary features of a golf Amendments to its title III regulation
where audible communication is course ensures that persons with are proposed in the NPRM for title III
integral to the use of the space and mobility disabilities may fully and published jointly with this rule. The
audio amplification systems are equally participate in a recreational proposals reflect the Department’s
provided for the general audience. activity. analysis and review of complaints or
However, these Standards do not set From an economic perspective, the comments from the public as well as
forth technical specifications for such Department’s RIA assumes that virtually changes in technology. Many of the
systems. Since 1991, advancements in every tee and putting green on an proposals aim to clarify and simplify the
ALS and the advent of digital existing course will need to be regraded obligations of covered entities. As
technologies have made these systems in order to provide compliant accessible discussed in greater detail above, one
more amenable to uniform technical (pedestrian) routes to these features. significant goal of the development of
specifications. In keeping with these However, the Department’s proposal the 2004 ADAAG was to eliminate
technological advancements, the revised also excuses compliance with the duplication or overlap in federal
requirements create a technical standard requirement for an accessible accessibility guidelines as well as to
that, among other things, ensures that a (pedestrian) route so long as a ‘‘golf car harmonize the federal guidelines with
certain percentage of required ALS have passage’’ (i.e., the path typically used by model codes. The Department has also
hearing-aid compatible receivers. golf cars) is otherwise provided to the worked to create harmony where
Requiring hearing-aid compatible ALS teeing ground, putting green, or other appropriate between the requirements of
jlentini on PROD1PC65 with PROPOSALS3
enables persons who are hard of hearing accessible element on a course. Because titles II and III. Finally, while the
to hear a speech, a play, a movie, or to it is likely that most public and private regulation is required by statute and
follow the content of a trial. Without an golf courses in the United States already there is a continued need for it as a
effective ALS, people with hearing loss provide golf passages to most or all whole, the Department proposes several
are effectively excluded from holes, the actual costs of this modifications that are intended to
participation because they are unable to requirement for owners and operators of reduce its effects on small entities.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34472 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
Organization of This NPRM Safe harbor. One of the most continue to determine accessibility in
The subsequent sections of this NPRM important issues the Department must these facilities on a case-by-case basis
deal with the Department’s response to address in proposing to adopt the 2004 under existing law? Please provide
comments and its proposals for changes ADAAG as its new ADA Standards for information on the effect of such a
to its current regulation that derive from Accessible Design is the effect that the proposal on people with disabilities and
the required, periodic review that it proposed standards will have on public entities.
performed. The proposed standards and existing facilities under title II. This Service animals. The Department
the Department’s response to comments issue was not addressed in the 2004 wishes to clarify the obligations of
regarding the 2004 ADAAG are ADAAG because it is outside of the public entities to accommodate
contained in Appendix A to the NPRM. scope of the Access Board’s authority individuals with disabilities who use
Appendix B to the NPRM contains the under the ADA. service animals. The Department
Department’s initial, formal benefit-cost Under title II, program accessibility continues to receive a large number of
analysis. requires that state and local government complaints from individuals with
The section of the NPRM entitled, agencies provide individuals with service animals. It appears, therefore,
‘‘General Issues,’’ briefly introduces disabilities with access to their that many covered entities are confused
topics that are noteworthy because they programs when ‘‘viewed in their about their obligations under the ADA
are new to the title II regulation or have entirety.’’ Title II does not require in this area. At the same time, some
been the subject of attention or structural modifications in all individuals with impairments—who
comment. The topics introduced in the circumstances in order to provide would not be covered as qualified
general issues section include: Safe program access. As a result of this individuals with disabilities—are
harbor, service animals, wheelchairs flexibility, the Department believes that claiming that their animals are
and other power-driven mobility the program accessibility requirement as legitimate service animals, whether
devices, effective communication and it is codified in the current regulation fraudulently or sincerely (albeit
auxiliary aids, alterations to prison may appropriately mitigate any burdens mistakenly), to gain access to the
cells, and equipment. on public entities without additional facilities of public entities. Another
Following the general issues section is regulatory safeguards. Nevertheless, in trend is the use of wild or exotic
the ‘‘Section-By-Section Analysis and order to provide certainty and clarity, animals, many of which are untrained,
Response to Comments.’’ This section the Department is proposing a safe as service animals. In order to clarify its
includes a detailed discussion of the harbor for elements in existing facilities position and avoid further
proposed changes to the text of the title that are in compliance with either the misapplication of the ADA, the
II regulation. The section-by-section 1991 Standards or the Uniform Federal Department is proposing amendments to
analysis follows the order of the current Accessibility Standards (UFAS), 41 CFR its regulation with regard to service
regulation, except that regulatory part 101–19.6, App. A. This proposal is animals.
sections that remain unchanged are not discussed below in § 35.150(b)(2) of the Minimal protection. In the
indicated. The discussion within each section-by-section analysis. Department’s ADA Business Brief on
section explains the proposals and the The Department invites comment on Service Animals, which was published
reasoning behind them as well as the whether public entities that operate in 2002, the Department interpreted the
Department’s response to related public existing facilities with play or recreation minimal protection language in its
comments. Subject areas that deal with areas should be exempted from definition of service animals within the
more than one section of the regulation compliance with certain requirements context of a seizure (i.e., alerting and
include references to the related in the 2004 ADAAG. Existing facilities protecting a person who is having a
sections where appropriate. would continue to be subject to seizure). Although the Department
The section-by-section analysis accessibility requirements in existing received comments urging it to
includes specific questions to which the law, but not specifically to the eliminate the phrase ‘‘providing
Department requests public response. requirements in: (1) The Access Board’s minimal protection’’ from its regulation,
These questions are numbered and supplemental guidelines on play areas, the Department continues to believe that
italicized so that they are easier for 65 FR 62498 (Oct. 18, 2000); and (2) the the language serves the important
readers to locate and reference. The Access Board’s supplemental guidelines function of excluding from coverage so-
Department emphasizes, however, that on recreation facilities, 67 FR 56352 called ‘‘attack dogs’’ that pose a direct
the public may comment on any aspect (Sept. 3, 2002). Under this scenario, the threat to others.
of this NPRM and is not required to 2004 ADAAG would apply only to new Guidance on permissible service
respond solely to questions specifically play areas and recreation facilities, and animals. The existing regulation
posed by the Department. would not govern the accessibility of implementing title III defines a ‘‘service
The Department’s proposed changes existing facilities as legal requirements. animal’’ as ‘‘any guide dog, signal dog,
to the actual regulatory text of title II Public entities that operate existing or other animal.’’ At the time the
that follow the section-by-section facilities with play or recreation areas, regulation was promulgated, the
analysis are entitled, ‘‘Part 35: pursuant to the ADA’s requirements to Department believed that leaving the
Nondiscrimination on the Basis of provide equal opportunity for species selection up to the discretion of
Disability in State and Local individuals with disabilities, may still the individual with a disability was the
Government Services.’’ have the obligation to provide an best course of action. Due to the
accessible route to the playground, some proliferation of animal types that have
General Issues accessible equipment, and an accessible been used as ‘‘service animals,’’
This section briefly introduces topics surface for the play area or recreation including wild animals, the Department
jlentini on PROD1PC65 with PROPOSALS3
that are noteworthy because they are facility. believes that this area needs established
new to the title II regulation or have Question 7: Should the Department parameters. Therefore, the Department
been the subject of considerable exempt public entities from specific is proposing to eliminate certain species
attention or comment. Each topic is compliance with the supplemental from coverage under the ADA even if
discussed in greater detail subsequently requirements for play areas and the other elements of the definition are
in the section-by-section analysis. recreation facilities, and instead satisfied.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34473
Comfort animals vs. psychiatric where there may be compelling reasons for power-operated wheelchairs of 6
service animals. Under the Department’s to permit the use of animals whose miles per hour. In a study of trail and
present regulatory language, some presence provides emotional support to other nonmotorized transportation users
individuals and entities have assumed a person with a disability. Accordingly, including EPAMDs, the Federal
that the requirement that service other federal agency regulations Highway Administration (FHWA) found
animals must be individually trained to governing those situations may that the eye height of people using
do work or carry out tasks excluded all appropriately provide for increased EPAMDs ranged from 681⁄4 inches to
persons with mental disabilities from access for animals other than service 791⁄2 inches. See Federal Highway
having service animals. Others have animals. Administration, Characteristics of
assumed that any person with a Proposed training standards. The Emerging Road and Trail Users and
psychiatric condition whose pet Department has always required that Their Safety (Oct. 2004), available at
provided comfort to him or her was service animals be individually trained http://www.tfhrc.gov/safety/pubs/04103.
covered by the ADA. The Department to do work or perform tasks for the Thus, EPAMDs can operate at much
believes that psychiatric service animals benefit of an individual with a greater speeds than wheelchairs, and the
that are trained to do work or perform disability, but has never imposed any average user is much taller than most
a task (e.g., reminding its owner to take type of formal training requirements or wheelchair users.
medicine) for persons whose disability certification process. While some EPAMDs have been the subject of
is covered by the ADA are protected by advocacy groups have urged the debate among users, pedestrians,
the Department’s present regulatory Department to modify its position, the disability advocates, state and local
approach. Department does not believe that such governments, businesses, and bicyclists.
Psychiatric service animals can be a modification would serve the array of The fact that a device is not designed
trained to perform a variety of tasks that individuals with disabilities who use primarily for use by or marketed
assist individuals with disabilities to service animals. primarily to individuals with
detect the onset of psychiatric episodes Detailed regulatory text changes and disabilities, nor used primarily by
and ameliorate their effects. Tasks the Department’s response to public persons with disabilities, complicates
performed by psychiatric service comments on these issues and others are the question of whether individuals
animals may include reminding the discussed below in the definitions with disabilities should be allowed to
handler to take medicine; providing § 35.104 and in a newly-proposed operate them in areas and facilities
safety checks, or room searches, or § 35.136. where other powered devices are not
turning on lights for persons with Post Wheelchairs and other power-driven allowed. Those who question the use of
Traumatic Stress Disorder; interrupting mobility devices. Since the passage of EPAMDs in pedestrian areas argue that
self-mutilation by persons with the ADA, choices of mobility aids the speed, size, and operating features of
dissociative identity disorders; and available to individuals with disabilities the devices make them too dangerous to
keeping disoriented individuals from have vastly increased. In addition to operate alongside pedestrians and
danger. devices such as wheelchairs and wheelchair users. Although the question
The Department is proposing new mobility scooters, individuals with of EPAMD safety has not been resolved,
regulatory text in § 35.104 to formalize disabilities may use devices that are not many states have passed legislation
its position on emotional support or designed primarily for use by addressing EPAMD operation on
comfort animals, which is that individuals with disabilities, such as sidewalks, bicycle paths, and roads. In
‘‘[a]nimals whose sole function is to electronic personal assistive mobility addition, some states, such as Iowa and
provide emotional support, comfort, devices (EPAMDs). (The only available Oregon, have minimum age
therapy, companionship, therapeutic model known to the Department is the requirements, or mandatory helmet
benefits, or promote emotional well- Segway.) The Department has received laws. New Jersey requires helmets for all
being are not service animals.’’ The complaints and become aware of EPAMD users, while Hawaii and
Department wishes to underscore that situations where individuals with Pennsylvania require helmets for users
the exclusion of emotional support mobility disabilities have utilized riding under a certain age.
animals from ADA coverage does not lawn mowers, golf cars, large While there may be legitimate safety
mean that persons with psychiatric, wheelchairs with rubber tracks, issues for EPAMD users and bystanders,
cognitive, or mental disabilities cannot gasoline-powered, two-wheeled EPAMDs and other nontraditional
use service animals. The Department scooters, and other devices for mobility devices can deliver real
proposes specific regulatory text in locomotion in pedestrian areas. These benefits to individuals with disabilities.
§ 35.104 to make this clear: ‘‘[t]he term new or adapted mobility aids benefit For example, individuals with severe
service animal includes individually individuals with disabilities, but also respiratory conditions who can walk
trained animals that do work or perform present new challenges for state and limited distances and individuals with
tasks for the benefit of individuals with local governments. multiple sclerosis have reported
disabilities, including psychiatric, EPAMDs illustrate some of the benefitting significantly from EPAMDs.
cognitive, and mental disabilities.’’ This challenges posed by new mobility Such individuals often find that
language simply clarifies the devices. The basic Segway model is a EPAMDs are more comfortable and
Department’s longstanding position. two-wheeled, gyroscopically stabilized, easier to use than wheelchairs, and
The Department’s rule is based on the battery-powered personal transportation assist with balance, circulation, and
assumption that the title II and title III device. The user stands on a platform digestion in ways that wheelchairs do
regulations govern a wider range of suspended three inches off the ground not. See Rachel Metz, Disabled Embrace
public settings than the settings that by wheels on each side, grasps a T- Segway, New York Times, Oct. 14, 2004.
jlentini on PROD1PC65 with PROPOSALS3
allow for emotional support animals. shaped handle, and steers the device The Department has received
The Department recognizes, however, similarly to a bicycle. The EPAMD can questions and complaints from
that there are situations not governed travel up to 121⁄2 miles per hour, individuals with disabilities and
exclusively by the title II and title III compared to the average pedestrian covered entities about which mobility
regulations, particularly in the context walking speed of 3 to 4 miles per hour aids must be accommodated and under
of residential settings and employment and the approximate maximum speed what circumstances. While some
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34474 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
individuals with disabilities support the investigations, the Department has accessible to prisoners with disabilities
use of unique mobility devices, other determined that public entities and presented three options: (1) Require
individuals with disabilities are sometimes misunderstand the scope of all altered elements to be accessible,
concerned about their personal safety their obligations under the statute and which would maintain the current
when others are using such devices. the regulation. Moreover, the number of policy that applies to other ADA
There is also concern about the impact individuals with hearing loss continues alterations requirements; (2) permit
of such mobility devices on facilities, to grow in this country as a large substitute cells to be made accessible
such as the weight of the device on segment of the population ages and as within the same facility, which would
fragile floor surfaces. individuals live longer. permit correctional authorities to meet
The Department intends to address The Department is proposing several their obligation by providing the
these issues and proposes to adopt a changes and additions to §§ 35.104, required accessible features in cells
policy that sets the parameters for when 35.160, and 35.161 of the title II within the same facility, other than
these devices must be accommodated. regulation to address these issues. those specific cells in which alterations
Toward that end, the Department Among other amendments, these are planned; or (3) permit substitute
proposes new definitions of the terms changes update the regulatory language cells to be made accessible within a
‘‘wheelchair’’—which includes in response to numerous technological prison system, which would focus on
manually and power-driven wheelchairs advances and breakthroughs in the area ensuring that prisoners with disabilities
and mobility scooters—and ‘‘other of auxiliary aids and services since the are housed in facilities that best meet
power-driven mobility device’’ and regulation was promulgated sixteen their needs, since alterations within a
accompanying regulatory text. The years ago. The most significant changes prison environment often result in
proposed definitions are discussed in relate to video interpreting services piecemeal accessibility. Discussion of
the section-by-section analysis of (VIS) and the provision of effective the proposed options and submitted
§ 35.104, and the proposed regulatory communication for companions. comments are described below in the
text is discussed in the section-by- A technology that has emerged since section-by-section analysis of § 35.152, a
section analysis of § 35.137. promulgation of the original regulation newly proposed section on matters
Much of the debate surrounding is video interpreting services (VIS), and related to detention and correctional
mobility aids has centered on the Department proposes to include it in facilities.
appropriate definitions for the terms the regulation. VIS permits an
Equipment and furniture. Question
‘‘wheelchair’’ and ‘‘other power-driven individual who is deaf or hard of
seven of the ANPRM asked for comment
mobility devices.’’ The Department has hearing to view and sign to a video
on whether regulatory guidance is
not defined the term ‘‘manually interpreter (i.e., a live interpreter in
needed with respect to the acquisition
powered mobility aids.’’ Instead, the another location) who can see and sign
proposed rule provides a list including to the individual through a camera and use of mobile, portable, and other
wheelchairs, walkers, crutches, canes, located on or near the monitor. VIS can free-standing equipment or furnishings
braces, or similar devices. The inclusion provide immediate, effective access to used by covered entities to provide
of the term ‘‘similar devices’’ indicates interpreting services seven days a week, services, and asked for specific
that the list is not intended to be twenty-four hours a day in a variety of examples of situations that should be
exhaustive. The Department would like situations by allowing individuals in addressed. The ANPRM explained that
input as to whether addressing separate locations to have live, face-to- free-standing equipment was already
‘‘manually powered mobility aids’’ in face communications. addressed in the regulations in several
this manner (i.e., via examples of such The specific amendments to the different contexts, but that since
devices) is appropriate. The Department section on auxiliary aids and services, covered entities continue to raise
also would like information as to in addition to the provision of VIS, are questions about the extent of their
whether there are any other non- described in §§ 35.104, 35.160, and obligation to provide accessible free-
powered or manually powered mobility 35.161 of the section-by-section analysis standing equipment, the Department
aids that should be added to the list and below. was considering adding specific
an explanation of the reasons they Alterations to prison cells. The 2004 language on equipment.
should be included. If an actual ADAAG establishes requirements for the The Department received comments
definition is preferred, the Department design and construction of cells in both in favor and against this proposal
would welcome input with regard to the correctional facilities. When the Access with a majority of comments in favor of
language that might be used to define Board adopted these new requirements, requiring accessible equipment and
‘‘manually powered mobility aids,’’ and it deferred one decision to the Attorney furniture. However, the Department has
an explanation of the reasons this General, specifically: ‘‘Alterations to decided to add no new regulatory text
language would better serve the public. cells shall not be required to comply with respect to equipment at this time.
Effective communication and except to the extent determined by the A few title II entities submitted very
auxiliary aids. Revised § 35.160(a) of the Attorney General.’’ The unique brief comments, with about half in favor
title II regulation requires a public entity environment and security concerns of a of specific requirements for free-
to take appropriate steps to ensure that correctional facility present challenges standing equipment and half opposed.
communications with individuals with that are not an issue in other Most individuals and organizations
disabilities, including applicants, government buildings, so the representing individuals with
participants, members of the public, and Department must strike a balance disabilities were in favor of adding or
their companions, are as effective as between the accessibility needs of clarifying requirements for accessible
communications with others. The inmates with disabilities and the equipment. Disability organizations
jlentini on PROD1PC65 with PROPOSALS3
Department has investigated hundreds concerns of the prison officials and staff pointed out that from the user’s
of complaints alleging that public that run the facilities. Therefore, in the perspective, it is irrelevant whether the
entities have failed to provide effective ANPRM, the Department sought public equipment (e.g., ATMs or vending
communication, many of which resulted comment about the most effective machines) is free-standing or fixed,
in settlement agreements and consent means to ensure that existing since the equipment must be accessible
decrees. During the course of its correctional facilities are made in order for them to use it.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34475
The Department believes that and possibly two, specialized golf cars until there are safety standards for these
accessible equipment and furnishings available for the use of individuals with cars.
are required when appropriate under disabilities, with no greater advance Other concerns raised by public
the existing regulations governing notice required to obtain them than for comments were the effect of allowing
modifications of policies, practices, and use of other golf cars. The Department accessible golf car use on the greens and
procedures, and in the requirement for also asked about the golf car’s safety and their impact on maintenance of the
program accessibility. 28 CFR 35.130(7); use on golf course greens. Accessible course. Some commenters suggested
35.150. In addition, some equipment single-user golf cars are cars for use by that the cars would damage the greens
may also be subject to the effective individuals with mobility impairments and that the repair costs would be more
communication requirements. 28 CFR that are driven with hand controls, and significant than for traditional golf cars.
35.160. The existing regulation at from which a person with a disability In addition, one commenter suggested
§ 35.150(a) requires that entities operate can hit the golf ball while remaining in that courses exceeding certain slope and
each service, program, or activity so the seat of the car. Some golf cars have degree standards be exempted from
that, when viewed in its entirety, each a swivel, elevated seat that allows the having single-user cars because of safety
is readily accessible to and usable by golfer to play from a semi-standing concerns. Comments from golf courses
individuals with disabilities, subject to position. These cars can be used by that have provided accessible golf cars
a defense of fundamental alteration or individuals without disabilities as well. were generally positive in terms of
undue burden. Section 35.150(b) The Department received many safety and maintenance of the course.
specifies that such entities may meet comments regarding accessible golf cars, Further, courses that provide accessible
their obligation to make each program with the majority of commenters in cars do not report any safety issues or
accessible to individuals with favor of requiring accessible golf cars. more than minimal damage to the
disabilities through the ‘‘redesign of The comments in opposition to greens.
equipment.’’ Section 35.160(a) requires requiring accessible golf cars came from With respect to making golf cars
covered entities to provide effective some individuals and from entities available, most supporters of providing
communication to program participants. covered by title III. The Department has accessible golf cars believe that no
Consequently, providing accessible decided to propose no new regulations advance notice should be required to
equipment is required when appropriate specific to accessible golf cars at this reserve the golf cars. One association
under the existing regulations. The time. supported requiring golf courses to have
Department has decided to continue accessible cars with advance notice,
Many commenters in favor of
with this approach and not to add any which could be achieved through
requiring accessible golf cars noted the
specific regulatory guidance addressing pooling arrangements with other
social aspect of golf, generally, and its
equipment at this time. courses. Some commenters explained
specific—albeit informal—importance,
The 2004 ADAAG includes revised that at least two cars per course should
in many business transactions, thus
requirements for some types of fixed be required so that golfers with
affecting both the social lives and the
equipment that are specifically disabilities can play together.
careers of some individuals with Commenters also addressed whether
addressed in the 1991 Standards, such
disabilities. courses that provide no cars at all
as ATMs and vending machines, as well
Comments opposed to requiring should provide accessible cars. Some
as detailed requirements for fixed
accessible golf cars generally came from commenters supported requiring every
equipment that is not addressed by
individuals and golf course owners and golf course, whether or not it provides
name in the current Standards, such as
associations covered by title III. Some traditional golf cars, to provide
depositories, change machines, and fuel
dispensers. Because the 2004 ADAAG commenters believed that there is little accessible cars because individuals with
provides detailed requirements for demand for accessible golf cars, or that disabilities will not be able to play
many types of fixed equipment, covered the problem is solved by putting without an accessible car.
entities should consult those ‘‘medical’’ flags on traditional cars to The Department has decided not to
requirements in determining what steps identify individuals with disabilities add a regulation specifically addressing
are appropriate for making free-standing who are then permitted to drive onto the accessible golf cars at this time. The
equipment accessible. The Department greens, which otherwise would not be existing regulation, which requires that
also agrees that when federal guidance permitted. Others stated that accessible entities operate each service, program,
for accessibility exists for equipment golf cars were too expensive or were or activity so that, when viewed in its
required to be accessible to individuals specialized equipment that individuals entirety, the service, program, or activity
who are blind or have low vision, with disabilities should purchase for is readily accessible to and usable by
entities should consult such guidance themselves. One city representative individuals with disabilities, subject to
(e.g., federal standards implementing commented that courses that do not a defense of fundamental alteration or
section 508 of the Rehabilitation Act, 36 provide golf cars should not be required undue burden, will continue to govern
CFR part 1194, or the guidelines that to provide accessible golf cars. this issue. 28 CFR 35.150(a).
specify communication accessibility for Safety and the impact on golf course The Department is aware that the
ATMs and fare card machines in the grounds were other areas addressed by Department of Defense has recently
2004 ADAAG, 36 CFR part 1191, App. the comments. Again, opinions were undertaken an extensive study of the
D). The Department intends to continue divided. Some commenters said that the accessibility of golf courses operated for
to monitor the use of accessible single-user golf cars are safe, do not military personnel. As a result of its
equipment by covered entities and to damage the greens, and speed up the study, the Department of Defense plans
analyze the economic impact of possibly pace of play. Others argued that the cars to provide two accessible golf cars at
jlentini on PROD1PC65 with PROPOSALS3
providing more detailed requirements in should pass the American National each of the 174 golf courses that the
future regulations governing specific Standards Institute (ANSI) standards 2 Department of Defense operates, except
types of free-standing equipment. for traditional golf cars, and that the those at which it would be unsafe to
Accessible golf cars. Question six of single-user cars should not be required operate such golf cars because of the
the ANPRM asked whether golf courses terrain of the course. See U.S.
should be required to make at least one, 2 ANSI Z130.1–1999. Department of Defense, Report to
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34476 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
Congress: Access of Disabled Persons to Commercial Facilities (Title III TA secondary auditory programs (SAP), and
Morale, Recreation, and Welfare (MRW) Manual), III–4.300, available at http:// accessible electronic and information
Facilities and Activities (Sept. 25, 2007). www.ada.gov/taman3.html. The title III technology.
The Department of Justice plans to definition of auxiliary aids and services
study the Defense Department’s provided the framework for the same ‘‘Direct Threat’’
implementation of its plan to determine definition in title II. See 56 FR 35544, In the Department’s proposed
if it provides an effective framework for 35565 (July 26, 1991) and 56 FR 35694, § 35.136(b)(3), a service animal may be
ensuring golf course accessibility. 35697 (July 26, 1991). This additional removed from the premises of a public
example of an appropriate auxiliary aid
Section-by-Section Analysis and entity if the animal poses a direct threat
and service was inserted because many
Response to Comments to the health or safety of others that
public entities do not realize that this
This section provides a detailed cannot be eliminated by reasonable
easy and efficient technique is available
description of the Department’s to them. While the exchange of written modifications. Direct threat is not
proposed changes to the title II notes is inappropriate for lengthy or defined in title II, but it is defined in
regulation, the reasoning behind the complicated communications, it can be § 36.208(b) of the current title III
proposals, and responses to public appropriate for situations such as regulation as ‘‘a significant risk to the
comments received on the topic. The routine requests for written information, health or safety of others that cannot be
section-by-section analysis follows the for a police officer issuing a speeding eliminated by a modification of policies,
order of the current title II regulation, ticket, or as a means of communication practices, or procedures, or by the
except that if the Department is not while awaiting the arrival of an provision of auxiliary aids or services.’’
proposing a change to a regulation interpreter. The Department proposes taking the
section, the unchanged section is not Also in paragraph (1) of the definition from its current location in
discussed. In addition, this section definition, the Department has replaced title III and placing it in the definitions
includes specific questions for which the term ‘‘telecommunications devices section in both title II (§ 35.104) and
the Department requests public for deaf persons (TDD)’’ with ‘‘text title III (§ 36.104).
response. These questions are numbered telephones (TTYs).’’ Although ‘‘TDD’’ is
and italicized in order to make them the term used in the ADA, the use of ‘‘Existing Facility’’
easier for readers to locate and ‘‘TTY’’ has become the commonly Under the ADA, a facility may be one
reference. accepted term and is consistent with the or more of three types at different points
terminology used by the Access Board in time: (1) An existing facility, (2) an
Subpart A—General in the 2004 ADAAG. The Department altered facility, or (3) a newly designed
Section 35.104 Definitions has also included in paragraph (1)
and constructed facility. In the current
‘‘accessible electronic and information
‘‘1991 Standards’’ and ‘‘2004 ADAAG’’ regulation, title II defines new
technology’’ as another example of
The Department is proposing to add construction at § 35.151(a) and
auxiliary aids and services. Lastly,
to the proposed regulation definitions of ‘‘computer-aided’’ has been added to alterations at § 35.151(b). In contrast, the
both the ‘‘1991 Standards’’ and the describe ‘‘transcription services’’ to term ‘‘existing facility’’ is not defined
‘‘2004 ADAAG.’’ The term ‘‘1991 make it consistent with title III. although it is used in the statute and in
Standards’’ refers to the currently The Department has added to the regulations for titles II and III. 42
enforceable ADA Standards for paragraph (1) a new technology, video U.S.C. 12182(b)(2)(A)(iv); 28 CFR
Accessible Design, codified at 28 CFR interpreting services (VIS), which 35.150.
part 36, App. A. The term ‘‘2004 consists of a video phone, video The Department’s enforcement of the
ADAAG’’ refers to Parts I and III of the monitors, cameras, a high speed Internet ADA is premised on a broad
Americans with Disabilities Act and connection, and an interpreter. VIS is understanding of ‘‘existing facilities.’’
Architectural Barriers Act Accessibility specifically discussed below in the The classifications of facilities under the
Guidelines, which were issued by the proposed definition of VIS. ADA regulation are not static. Rather, a
Architectural and Transportation In paragraph (2) of the definition, the building that was newly designed and
Barriers Compliance Board on July 23, Department proposes to insert constructed at one time—and, therefore,
2004, at 69 FR 44084 (to be codified at additional examples of auxiliary aids subject to the accessibility standards in
36 CFR 1191), and which the and services for individuals who are effect at the time—becomes an ‘‘existing
Department is proposing to adopt in this blind or have low vision. The preamble facility’’ after it is completed. At some
NPRM. These terms are included in the to the original regulation makes clear point in its life, it may also be
definitions section for ease of reference. that the original list in the regulation
considered ‘‘altered’’ and then again
was ‘‘not an all-inclusive or exhaustive
‘‘Auxiliary Aids and Services’’ become ‘‘existing.’’
catalogue of possible or available
Several types of auxiliary aids that auxiliary aids or services. It is not The added definition of ‘‘existing
have become more readily available possible to provide an exhaustive list, facility’’ in the proposed regulation
have been added to § 35.104 under the and an attempt to do so would omit the clarifies that the term means exactly
definition of auxiliary aids and services. new devices that will become available what it says: A facility in existence on
For purposes of clarification, the with emerging technology.’’ See 56 FR any given date is an existing facility
Department has added the exchange of 35694, 35697 (July 26, 1991). Because under the ADA. If a facility exists, it is
written notes as an example of an technological advances in the seventeen an existing facility whether it was built
auxiliary aid or service. This common- years since the ADA was enacted have in 1989, 1999, or 2009. Of course, if the
jlentini on PROD1PC65 with PROPOSALS3
sense example is a codification of the increased the range of auxiliary aids and construction of a facility at issue begins
Department’s longstanding policy with services for those who are blind or have after the triggering dates for the new
regard to title III entities. See The low vision, the Department has added construction standards, then the facility
Americans with Disabilities Act, Title III additional examples, including brailled is subject to the new construction
Technical Assistance Manual, Covering displays, screen reader software, standards, and if it is altered, it is
Public Accommodations and magnification software, optical readers, subject to the alterations standards.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34477
‘‘Other Power-Driven Mobility Device’’ qualified to interpret orally. Also, modifications to rules, policies, or
The proposed regulation defines the someone with just a rudimentary practices, the removal of architectural,
term ‘‘other power-driven mobility familiarity with sign language or finger communication, or transportation
device’’ as ‘‘any of a large range of spelling is not a qualified sign language barriers, or the provision of auxiliary
devices powered by batteries, fuel, or interpreter. Likewise, a qualified sign aids and services, meets the essential
language interpreter would not include eligibility requirements for the receipt of
other engines—whether or not designed
someone who is fluent in sign language services or the participation in programs
solely for use by individuals with
but unable to translate spoken or activities provided by a public
mobility impairments—that are used by
communication into ASL or to translate entity.’’ 28 CFR 35.104. The Department
individuals with mobility impairments
signed communication into spoken is proposing to add to the title II
for the purpose of locomotion, including
words. regulation the same definition of
golf cars, bicycles, electronic personal The revised definition includes ‘‘service animal’’ that it will propose for
assistance mobility devices (EPAMDs) examples of different types of the title III regulation. The title III
(e.g., Segway), or any mobility aid interpreters. An oral interpreter has regulation currently contains a
designed to operate in areas without special skill and training to mouth a definition of ‘‘service animal’’ in
defined pedestrian routes.’’ The speaker’s words silently for individuals § 36.104.
definition is designed to be broad and who are deaf or hard of hearing, many The current definition of ‘‘service
inclusive because the Department of whom were raised orally and were animal’’ in § 36.104 is, ‘‘any guide dog,
recognizes the diverse needs and taught to read lips or were diagnosed signal dog, or other animal individually
preferences of individuals with with hearing loss later in life and do not trained to do work or perform tasks for
disabilities and does not wish to impede know sign language. An individual who the benefit of an individual with a
individual choice except when is deaf or hard of hearing may need an disability, including, but not limited to,
necessary. Power-driven mobility oral interpreter if the speaker’s voice is guiding individuals with impaired
devices are included in this category. unclear, there is a quick-paced exchange vision, alerting individuals with
Mobility aids that are designed for areas of communication (e.g., in a meeting), or impaired hearing to intruders or sounds,
or conditions without defined when the speaker does not directly face providing minimal protection or rescue
pedestrian areas, such as off-road bike the individual who is deaf or hard of work, pulling a wheelchair, or fetching
paths, roads (except where allowed by hearing. A cued speech interpreter dropped items.’’ The Department would
law or where a sidewalk is not functions in the same manner as an oral modify that current definition, and add
provided), freeways, or natural surfaces interpreter except that he or she also the same definition, as modified, to the
such as beaches where there is not a uses a hand code, or cue, to represent title II regulation at § 35.104. The
defined circulation route for each speech sound. changes that would be made to the title
pedestrians, are also included in this III definition, and that would be
category. ‘‘Qualified Reader’’
incorporated in the title II definition are
Question 8: Please comment on the The current regulation identifies a as follows:
proposed definition of other power- qualified reader as an auxiliary aid, but 1. Remove ‘‘guide’’ or ‘‘signal’’ as
driven mobility devices. Is the definition it does not define the term. See 28 CFR descriptions of types of service dogs,
overly inclusive of power-driven 35.104(2). Based upon the Department’s add ‘‘other common domestic’’ animal,
mobility devices that may be used by investigation of complaints alleging that and add ‘‘qualified’’ to ‘‘individual’’ in
individuals with disabilities? some entities have provided ineffective the Department’s current definition;
The Department’s proposed regulatory readers, the Department proposes to 2. Remove ‘‘individuals with
text on accommodating wheelchairs and define ‘‘qualified reader’’ similarly to impaired vision’’ and replace it with
other power-driven mobility devices is ‘‘qualified interpreter’’ to ensure that ‘‘individuals who are blind or have low
discussed below in § 35.137 of the entities select qualified individuals to vision;’’
section-by-section analysis. read an examination or other written 3. Change ‘‘individuals with impaired
information in an effective, accurate, hearing’’ to ‘‘individuals who are deaf or
‘‘Proposed Standards’’
and impartial manner. Failing to hard of hearing;’’
The Department has added the term provide a qualified reader to a person 4. Replace the term ‘‘intruders’’ with
‘‘proposed standards’’ to mean the 2004 with a disability could amount to the phrase ‘‘the presence of people’’ in
ADAAG as revised or amended by the discrimination based upon disability. the section on alerting individuals who
Department in this rulemaking. The full are deaf or hard of hearing;
text of the 2004 ADAAG is available for ‘‘Service Animal’’
5. Add the following to the list of
review at http://www.access-board.gov Although there is no specific language work and task examples: Assisting an
along with a detailed comparison of the in the current title II regulation individual during a seizure, retrieving
1991 Standards and the 2004 ADAAG concerning service animals, title II medicine or the telephone, providing
that identifies the differences between entities have the same legal obligations physical support to assist with balance
the two documents. as title III entities to make reasonable and stability to individuals with
modifications in policies, practices, or mobility disabilities, and assisting
‘‘Qualified Interpreter’’ procedures to allow service animals individuals, including those with
The Department proposes to add to when necessary to avoid discrimination cognitive disabilities, with navigation;
the definition of ‘‘qualified interpreter’’ on the basis of disability, unless the 6. Add that ‘‘service animal’’ includes
to clarify that the term includes, but is modifications would fundamentally individually trained animals that do
not limited to, sign language alter the nature of the service, program, work or perform tasks for the benefit of
jlentini on PROD1PC65 with PROPOSALS3
interpreters, oral interpreters, and cued or activity. 28 CFR 35.130(b)(7). In order individuals with disabilities, including
speech interpreters. to qualify for coverage under title II, a psychiatric, cognitive, or mental
Not all interpreters are qualified for person must be a ‘‘qualified individual disabilities;
all situations. For example, a qualified with a disability,’’ which is defined as 7. Add that ‘‘service animal’’ does not
interpreter who uses American Sign ‘‘an individual with a disability who, include wild animals (including
Language (ASL) is not necessarily with or without reasonable nonhuman primates born in captivity),
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34478 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
reptiles, rabbits, farm animals eliminated from the definition, and that issue (i.e., how many unusual animals
(including any breed of horse, pony, ‘‘physical’’ should be added to describe are now claimed as service animals) and
miniature horse, pig, and goat), ferrets, tasks. Tasks by their nature are physical, believes that this aspect of the
amphibians, and rodents; and so the Department does not believe that regulation needs clarification.
8. Add that animals whose sole such a change is warranted. In contrast, To establish a practical and
function is to provide emotional the existing phrase ‘‘do work’’ is slightly reasonable species parameter, the
support, comfort, therapy, broader than ‘‘perform tasks,’’ and adds Department proposes to narrow the
companionship, therapeutic benefits, or meaning to the definition. For example, definition of acceptable animal species
promote emotional well-being are not a psychiatric service dog can help some to ‘‘dog or other common domestic
service animals. individuals with dissociative identity animal’’ by excluding the following
The Department is proposing these disorder to remain grounded in time or animals: Wild animals (including
changes in response to concerns place. As one service dog user stated, in nonhuman primates born in captivity),
expressed by commenters regarding the some cases, ‘‘critical forms of assistance reptiles, rabbits, farm animals
Department’s ANPRM. Issues raised by can’t be construed as physical tasks,’’ (including any breed of horse, miniature
the commenters include: noting that the manifestations of ‘‘brain- horse, pony, pig, or goat), ferrets,
‘‘Minimal protection.’’ There were based disabilities,’’ such as psychiatric amphibians, and rodents. Many
many comments by service dog users disorders and autism, are as varied as commenters asserted that limiting the
urging the Department to remove from their physical counterparts. One number of allowable species would help
the definition the phrase ‘‘providing commenter stated that the current stop erosion of the public’s trust, which
minimal protection.’’ The commenters definition works for everyone (i.e., those results in reduced access for many
set forth the following reasons for why with physical and mental disabilities) individuals with disabilities, despite the
the phrase should be deleted: (1) The and urged the Department to keep it. fact that they use trained service
current phrase can be interpreted to The Department has evaluated this issue animals that adhere to high behavioral
apply coverage under the ADA to and believes that the crux of the current standards. The Department is compelled
‘‘protection dogs’’ that are trained to be definition (individual training to do to take into account practical
aggressive and protective, so long as work or perform tasks) is inclusive of considerations of certain animals and
they are paired with a person with a the varied services provided by working contemplate their suitability in a variety
disability; and (2) since some view the animals on behalf of individuals with of public contexts, such as libraries or
minimal protection language to mean all types of disabilities and proposes courtrooms.
that a dog’s very presence can act as a that this portion of the definition remain In addition, the Department believes
crime deterrent, the language may be the same. that it is necessary to eliminate from
interpreted to allow any untrained pet Define ‘‘task.’’ One commenter coverage all wild animals, whether born
dog to provide minimal protection by its suggested defining the term ‘‘task,’’ or bred in captivity or the wild. Some
mere presence. These interpretations presumably so that there would be a animals, such as nonhuman primates,
were not contemplated by the ADA. better understanding of what type of pose a direct threat to safety based on
Question 9: Should the Department service performed by an animal would behavior that can be aggressive and
clarify the phrase ‘‘providing minimal qualify for coverage. The Department violent without notice or provocation.
protection’’ in the definition or remove feels that the common definition of task The American Veterinary Medical
it? Are there any circumstances where a is sufficiently clear and that it is not Association (AVMA) issued a position
service animal providing ‘‘minimal necessary to add the term to the statement against the use of monkeys as
protection’’ would be appropriate or definitions section; however, the service animals, stating, ‘‘[t]he AVMA
expected? Department has proposed additional does not support the use of nonhuman
‘‘Alerting to intruders.’’ Some examples of work or tasks to help primates as assistance animals because
commenters expressed a similar concern illustrate this requirement in the of animal welfare concerns, the
regarding the phrase ‘‘alerting * * * to definition of service animal. potential for serious injury, and
intruders’’ in the current text as the Define ‘‘animal’’ or what qualifies zoonotic [animal-to-human disease
concern expressed by commenters certain species as ‘‘service animals.’’ transmission] risks.’’ See the AVMA
regarding the phrase ‘‘providing When the regulation was promulgated 2005 position statement, Nonhuman
minimal protection.’’ Commenters in 1991, the Department did not define Primates as Assistance Animals,
indicated that ‘‘alerting to intruders’’ the parameters of acceptable animal available at http://www.avma.org/
has been misinterpreted by some species, and few anticipated the variety issues/policy/nonhuman_primates.asp.
individuals to apply to a special line of of animals that would be used in the The potential for nonhuman primates to
protection dogs that are trained to be future, ranging from pigs and miniature transmit dangerous diseases to humans
aggressive. People have asserted, horses to snakes and iguanas. One has been documented in scientific
incorrectly, that use of such animals is commenter suggested defining ‘‘animal’’ journals.
protected under the ADA. The (in the context of service animals) or the Although unusual species make up a
Department reiterates that public parameters of acceptable species to very small percentage of service animals
entities are not required to admit any reduce the confusion over whether a as a collective group, their use has
animal that poses a direct threat to the particular service animal is covered. engendered broad public debate and,
health or safety of others. The One service dog organization therefore, the Department seeks
Department has proposed removing commented that other species would be comment on this issue.
‘‘intruders’’ and replacing it with ‘‘the acceptable if those animals could meet Question 10: Should the Department
presence of people.’’ the behavioral standards of trained eliminate certain species from the
jlentini on PROD1PC65 with PROPOSALS3
‘‘Task’’ emphasis. Many commenters service dogs. Other commenters asserted definition of ‘‘service animal’’? If so,
followed the lead of an umbrella service that there are certain animals (e.g., please provide comment on the
dog organization and suggested that the reptiles) that cannot be trained to do Department’s use of the phrase
phrase ‘‘performing tasks’’ should form work or perform tasks, so these animals ‘‘common domestic animal’’ and on its
the basis of the service animal would not be covered. The Department choice of which types of animals to
definition, that ‘‘do work’’ should be has followed closely this particular exclude.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34479
Question 11: Should the Department Handbook No. 4350.3 Rev–1, Chg–2, performance standards for VIS at
impose a size or weight limitation for Occupancy Requirements of Subsidized § 35.160.
common domestic animals, even if the Multifamily Housing Programs (June
‘‘Wheelchair’’
animal satisfies the ‘‘common domestic 2007), available at http://
animal’’ prong of the proposed www.hudclips.org.) Moreover, the The Department proposes the
definition? Department’s proposal to change the following definition of ‘‘wheelchair’’ in
Comfort animals. It is important to definition of ‘‘service animal’’ under the § 35.104: ‘‘Wheelchair means a device
address the concept of comfort animals ADA is not intended to affect the rights designed solely for use by an individual
or emotional support animals, which of people with disabilities who use with a mobility impairment for the
have become increasingly popular. The assistance animals in their homes under primary purpose of locomotion in
increased use of comfort animals is the FHA. typical indoor and outdoor pedestrian
primarily by individuals with mental or In addition, the term ‘‘psychiatric areas. A wheelchair may be manually
psychiatric impairments, many of which service animal’’ describes a service operated or power-driven.’’
do not rise to the level of disability. The proposed definition of
animal that does work or performs a
Comfort animals are also used by ‘‘wheelchair’’ is informed by several
task for the benefit of an individual with
individuals without any type of existing definitions of ‘‘wheelchair.’’
a psychiatric disability. This contrasts
impairment who claim the need for Section 507 of the ADA defines
with ‘‘emotional support’’ animals that
such an animal in order to bring their wheelchair in the context of whether to
are covered under the Air Carrier Access
pets into facilities of public entities. allow wheelchairs in federal wilderness
Act, 49 U.S.C. 41705 et seq., and its
The difference between an emotional areas: ‘‘The term ‘wheelchair’ means a
implementing regulations, 14 CFR
support animal and a psychiatric service device designed solely for use by a
382.7, see also 68 FR 24874, 24877 (May
animal is the service that is provided, mobility-impaired person for
9, 2003) (guidance on accommodation of
i.e., the actual work or task performed locomotion, that is suitable for use in an
service animals and emotional support indoor pedestrian area.’’ 42 U.S.C.
by the service animal. Another critical animals on air transportation) and
factor rests on the severity of the 12207(c)(2). The Department believes
qualify as ‘‘assistance animals’’ under that while this definition is appropriate
individual’s impairment. For example,
the FHA, but do not qualify as ‘‘service in the limited context of federal
only individuals with conditions that
animals’’ under the ADA. wilderness areas, it is not specific
substantially limit them in a major life
activity qualify for coverage under the ‘‘Video Interpreting Services (VIS)’’ enough to provide clear guidance in the
ADA, and only those individuals’ use of array of settings covered by title II.
The Department has added a The other existing federal definition
a service animal will be covered under
definition of video interpreting services of ‘‘wheelchair’’ that the Department
the ADA. See definition of disability, 42
(VIS), a technology composed of a video reviewed is in the Department of
U.S.C. 12102(2) and 28 CFR 35.104.
phone, video monitors, cameras, a high Transportation regulation implementing
Major life activities include functions
speed Internet connection, and an the transportation provisions under title
such as caring for one’s self, performing
interpreter. The video phone provides II and title III of the ADA. The
manual tasks, walking, seeing, hearing,
speaking, breathing, learning, and video transmission to a video monitor Department of Transportation’s
working. Many Americans have some that permits the individual who is deaf definition of ‘‘wheelchair’’ is ‘‘a
type of physical or mental impairment or hard of hearing to view and sign to mobility aid belonging to any class of
(e.g., arthritis, anxiety, back pain, a video interpreter (i.e., a live three or four-wheeled devices, usable
imperfect vision, etc.), but establishing interpreter in another location), who can indoors, designed for and used by
a physical or mental disability also see and sign to the individual through individuals with mobility impairments,
requires a substantial limitation of a a camera located on or near the monitor, whether operated manually or
major life activity. Traditionally, service while others can communicate by powered.’’ 49 CFR 37.3. The Department
dogs worked as guides for individuals speaking. The video monitor can has adopted much of the language from
who were blind or had low vision. Since display a split screen of two live images, this definition. Under the proposed
the original regulations were with the interpreter in one image and definition, wheelchairs include
promulgated, service animals have been the individual who is deaf or hard of manually operated and power-driven
trained to assist individuals with hearing in the other image. wheelchairs and mobility scooters.
different types of disabilities. As a VIS can provide immediate, effective Mobility devices such as golf cars,
result, individuals with minor access to interpreting services seven bicycles, and electronic personal
impairments may mistakenly conclude days a week, twenty-four hours a day by assistance mobility devices (EPAMDs)
that any type of impairment qualifies allowing people in different locations to are inherently excluded from the
them for ADA coverage. engage in live, virtual face-to-face proposed definition. Typically, the
Change ‘‘service animal’’ to communications. Moreover, VIS is devices covered under the proposed
‘‘assistance animal.’’ Some commenters particularly helpful where qualified definition are single-user, have three to
asserted that ‘‘assistance animal’’ is a interpreters are not readily available four wheels, and are appropriate for
term of art and should replace ‘‘service (e.g., for quick response during both indoor and outdoor pedestrian
animal.’’ While some agencies, like the emergency hospital visits, in areas with areas. However, it could include a
Department of Housing and Urban an insufficient number of qualified variety of types of wheelchairs and
Development (HUD), use the term interpreters to meet demand, and in mobility scooters with individualized or
‘‘assistance animal,’’ that term is used to rural areas where distances and an unique features or models with different
denote a broader category of animals interpreter’s travel time present numbers of wheels. ‘‘Typical indoor and
jlentini on PROD1PC65 with PROPOSALS3
than is covered by the ADA. The obstacles). outdoor pedestrian areas’’ refer to
Department believes that changing the In addition to adding the specific locations and surfaces used by and
term used under the ADA would create definition of VIS, the Department intended for pedestrians, including
confusion, particularly in view of the proposes to add VIS to the definition of sidewalks, paved paths, floors of
broader parameters for coverage under ‘‘auxiliary aids and services’’ (discussed buildings, elevators, and other
the Fair Housing Act (FHA) (cf., HUD above in § 35.104) and to set out circulation routes, but would not
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34480 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
include such areas as off-road bike a definition would better serve the that discrete event, a public entity may
paths, roads (except where allowed by public. reduce such accessible features in
law or where a sidewalk is not The proposed regulation regarding accordance with the requirements in the
provided), freeways, or natural surfaces mobility devices, including proposed standards.
such as beaches where there is not a wheelchairs, is discussed below in the
section-by-section analysis for § 35.137. Section 35.136 Service Animals
defined circulation route for
pedestrians. The Department’s title II regulation
Subpart B—General Requirements now states that ‘‘[a] public entity shall
The Department does not propose to
define specific dimensions that qualify Section 35.130 General Prohibitions make reasonable modifications in
a device as a wheelchair. The Against Discrimination policies, practices, or procedures when
Department of Transportation’s the modifications are necessary to avoid
Section 35.133 Maintenance of
definition includes a subpart defining discrimination on the basis of disability,
Accessible Features
‘‘common wheelchair’’ to provide unless the public entity can demonstrate
The general rule regarding the that making the modifications would
guidance for public transit authorities
maintenance of accessible features, fundamentally alter the nature of the
on which devices must be transported.
which provides that a public entity service, program, or activity.’’ 28 CFR
A ‘‘common wheelchair’’ is a
must maintain in operable working 35.130(b)(7). In the proposed title II
wheelchair that ‘‘does not exceed 30 condition those features of facilities and
inches in width and 48 inches in length language, the Department intends to
equipment that are required to be provide the broadest feasible access to
measured two inches above the ground, readily accessible to and usable by
and does not weigh more than 600 individuals with disabilities who use
qualified individuals with disabilities, service animals, unless a public entity
pounds when occupied.’’ 49 CFR 37.3. is unchanged. However, the Department
The narrower definition of ‘‘common can demonstrate that making the
wishes to clarify its application and modifications would fundamentally
wheelchair’’ was developed with proposes one change to the section.
reference to the requirements for lifts to alter the nature of the public entity’s
The Department has noticed that service, program, or activity.
establish parameters for the size and some covered entities do not understand The proposed section regarding
weight a lift can safely accommodate. what is required by § 35.133, and it service animals would incorporate the
See 49 CFR part 37, App. D (2002). The would like to take the opportunity Department’s policy interpretations as
Department does not believe it is presented by this NPRM to clarify the outlined in its published technical
necessary to adopt stringent size and requirement. Section 35.133(a) broadly assistance Commonly Asked Questions
weight requirements for wheelchairs. covers all features that are required to be about Service Animals (1996) (available
The Department requests public input accessible under the ADA, from at http://www.ada.gov/qasrvc.htm), and
on the proposed definition for accessible routes and elevators to roll-in ADA Business Brief: Service Animals
‘‘wheelchair.’’ showers and signage. It is not sufficient (2002) (available at http://www.ada.gov/
Question 12: As explained above, the for a building or other feature to be built svcanimb.htm), as well as make changes
definition of ‘‘wheelchair’’ is intended to in compliance with the ADA, only to be based on public comment. Proposed
be tailored so that it includes many changed or blocked later so that it § 35.136 would:
styles of traditional wheeled mobility becomes inaccessible. A common 1. Expressly incorporate the
devices (e.g., wheelchairs and mobility problem observed by the Department is Department’s policy interpretations as
scooters). Does the definition appear to that covered facilities do not maintain outlined in its published technical
exclude some types of wheelchairs, accessible routes. For example, the assistance and add that a public entity
mobility scooters, or other traditional accessible routes in offices or hallways may ask an individual with a disability
wheeled mobility devices? Please cite are commonly obstructed by boxes, to remove a service animal from the
specific examples if possible. furniture, or other items so that the premises if: (i) The animal is out of
Question 13: Should the Department routes are inaccessible to individuals control and the animal’s handler does
expand its definition of ‘‘wheelchair’’ to who use wheelchairs. Under the ADA, not take effective action to control it; (ii)
include Segways? the accessible route must be maintained the animal is not housebroken; (iii) the
Question 14: Are there better ways to and therefore these items are required to animal’s presence or behavior
define different classes of mobility be removed. If the items are placed there fundamentally alters the nature of the
devices, such as the weight and size of temporarily—for example, if an office service the public entity provides (e.g.,
the device that is used by the receives multiple boxes of supplies and repeated barking); or (iv) the animal
Department of Transportation in the is moving them from the hall to the poses a direct threat to the health or
definition of ‘‘common wheelchair’’? storage room—then § 35.133(b) excuses safety of others that cannot be
Question 15: Should the Department such ‘‘isolated or temporary eliminated by reasonable modifications
maintain the non-exhaustive list of interruptions.’’ Other common examples in § 35.136(b);
examples as the definitional approach of features that must be maintained, and 2. Add in § 35.136(c) that if a public
to the term ‘‘manually powered mobility often are not, are platform lifts and entity properly excludes a service
aids’’? If so, please indicate whether elevators. Public entities must ensure animal, the public entity must give the
there are any other non-powered or that these features are operable, and to individual with a disability the
manually powered mobility devices that meet this requirement, regular servicing opportunity to participate in or benefit
should be considered for specific and making repairs quickly will be from the services, programs, or activities
inclusion in the definition, a description necessary. without having the service animal on
of those devices, and an explanation of The Department proposes to amend the premises;
jlentini on PROD1PC65 with PROPOSALS3
the reasons they should be included. the rule by adding § 35.133(c) to address 3. Add in § 35.136(d) requirements
Question 16: Should the Department the discrete situation in which the that the work or tasks performed by a
adopt a definition of the term scoping requirements provided in the service animal must be directly related
‘‘manually powered mobility aids’’? If proposed standards may reduce the to the handler’s disability; that a service
so, please provide suggested language number of required elements below that animal that accompanies an individual
and an explanation of the reasons such are required by the 1991 Standards. In with a disability into a public entity’s
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34481
facility must be individually trained to animals. Because of the variety of operating rooms, holding and recovery
do work or perform a task, be individual training that a service animal areas, labor and delivery suites,
housebroken, and be under the control can receive—from formal licensing at an newborn intensive care nurseries, and
of its owner; and that a service animal academy to individual training on how sterile processing departments. See
must have a harness, leash, or other to respond to the onset of medical Centers for Disease Control, Guidelines
tether; conditions, such as seizures—the for Environmental Infection Control in
4. Add in § 35.136(e) specific Department is not inclined to establish Health Care Facilities (June 2003),
language clarifying that ‘‘[a] public a standard that all service animals must available at http://www.cdc.gov/mmwr/
entity is not responsible for caring for or meet. Some of the behavioral standards preview/mmwrhtml/rr5210a1.htm.
supervising a service animal.’’ This that the Department is proposing
proposed language does not require that Section 35.137 Mobility Devices
actually relate to suitability for public
the person with a disability care for his access, such as being housebroken and Proposed § 35.137 has been added to
or her service animal if care can be under the control of its handler. provide additional guidance to public
provided by a family member, friend, Hospital and healthcare settings. entities about the circumstances in
attendant, volunteer, or anyone acting Public entities, including public which power-driven mobility devices
on behalf of the person with a disability. hospitals, must modify policies, must be accommodated.
This provision is a variation on the practices, or procedures to permit the As discussed earlier in this NPRM,
existing title III language in use of a service animal by an individual this proposal is in response to growing
§ 36.302(c)(2), which states, ‘‘[n]othing with a disability. 28 CFR 35.130(b)(7). confusion about what types of mobility
in this part requires a public The exception to this requirement is if devices must be accommodated. The
accommodation to supervise or care for making the modification would Department has received complaints
a service animal.’’ The Department is fundamentally alter the nature of the and become aware of situations where
proposing similar modifications to the service, program, or activity. The individuals with mobility disabilities
title III requirements on service animals Department generally follows the have utilized for locomotion purposes
in the NPRM for title III, published guidance of the Centers for Disease riding lawn mowers, golf cars, large
concurrently with this NPRM. Control and Prevention (CDC) on the wheelchairs with rubber tracks,
5. Expressly incorporate the use of service animals in a hospital gasoline-powered, two-wheeled
Department’s policy interpretations as setting. scooters, and other devices that are not
outlined in its published technical As required by the ADA, a healthcare designed for use or exclusively used by
assistance that a public entity must not facility must permit a person with a people with disabilities. Indeed, there
ask what the person’s disability is or disability to be accompanied by his or has been litigation about whether the
about the nature of the person’s her service animal in all areas of the ADA requires covered entities to allow
disability, nor require proof of service facility in which that person would people with disabilities to use their
animal certification or licensing, but otherwise be allowed, with some EPAMDs like users of traditional
that a public entity may ask (i) if the exceptions. Zoonotic diseases can be wheelchairs. Individuals with
animal is required because of a transmitted to humans through trauma disabilities have sued several shopping
disability; and (ii) what work or tasks (e.g., bites or scratches). Although there malls in which businesses refused to
the animal has been trained to perform is no evidence that most service animals allow a person with a disability to use
in § 35.136(f); pose a significant risk of transmitting an EPAMD. See, e.g., Sarah Antonacci,
6. Expressly incorporate the infectious agents to humans, animals White Oaks Faces Lawsuit over Segway,
Department’s policy interpretations as can serve as a reservoir for a significant State Journal-Register, Oct. 9, 2007,
outlined in its published technical number of diseases that could available at http://www.sj-r.com/news/
assistance and add that a public entity potentially be transmitted to humans in stories/17784.asp; Shasta Clark, Local
must not require an individual with a the healthcare setting. A service animal Man Fighting Mall Over Right to Use
disability to pay a fee or surcharge or may accompany its owner to such areas Segway, WATE 6 News, July 26, 2005,
post a deposit as a condition of as admissions and discharge offices, the available at http://www.wate.com/
permitting a service animal to emergency room, inpatient and Global/story.asp?s=3643674. The
accompany its handler in a public outpatient rooms, examining and Department believes clarification on
entity’s facility, even if such deposits diagnostic rooms, clinics, rehabilitation what the ADA requires is necessary at
are required for pets, and that if a public therapy areas, the cafeteria and vending this juncture.
entity normally charges its citizens for areas, the pharmacy, rest rooms, and all Section 35.137(a) reiterates the
damage that they cause, a citizen with other areas of the facility where visitors general rule that public entities shall
a disability may be charged for damage are permitted, except those listed below. permit individuals using wheelchairs,
caused by his or her service animal in Under the ADA, the only scooters, and manually powered
§ 35.136(h). circumstances under which a person mobility aids, including walkers,
These changes will respond to the with a disability may not be entitled to crutches, canes, braces, and similar
following concerns raised by be accompanied by his or her service devices, in any areas open to
individuals and organizations that animal are those rare circumstances in pedestrians. The regulation underscores
commented in response to the ANPRM. which it has been determined that the this general proposition because the
Proposed behavior or training animal poses a direct threat to the great majority of mobility scooters and
standards. Some commenters proposed health or safety of others. A direct threat wheelchairs must be accommodated
behavior or training standards for the is defined as a significant risk to the under nearly all circumstances in which
Department to adopt in its revised health or safety of others that cannot be title II applies.
jlentini on PROD1PC65 with PROPOSALS3
regulation, not only to remain in eliminated or mitigated by a Section 35.137(b) adopts the general
keeping with the requirement for modification of polices, practices, or requirement in the ADA that public
individual training, but also on the basis procedures. Based on CDC guidance, it entities must make reasonable
that without training standards the is generally appropriate to exclude a modifications to their policies,
public has no way to differentiate service animal from areas that require a practices, and procedures when
between untrained pets and service protected environment, including necessary to enable an individual with
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34482 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
a disability to use a power-driven people with disabilities inside a individual with a disability to park the
mobility device to participate in its building may be prohibited, for mobility device and walk into the recorder of
services, programs, or activities unless example, because the exhaust may be deeds office, the city government would still
doing so would result in a fundamental harmful to others. A mobility device be required to provide services to the person
through program access by meeting the
alteration of their services, programs, or that is unsafe to others would not be individual in an adjacent, more spacious
activities. reasonable under the proposed office, allowing him or her to obtain services
If a public entity restricts the use of regulation. Additionally, the risk of over the phone, sending an employee to the
power-driven mobility devices by harm to the environment or natural or individual’s home, or through other means.
people without disabilities, then it must cultural resources or conflicts with
develop policies addressing which The Department is seeking public
federal land management laws and
devices and under what circumstances comment on the proposed definitions
regulations are also to be considered.
individuals with disabilities may use and policy concerning wheelchairs and
The final consideration is the ability of
power-driven mobility devices for the other mobility devices.
the public entity to stow the mobility Question 17: Are there types of
purpose of mobility. Under the device when not in use, if requested by
Department’s proposed regulation in personal mobility devices that must be
the user. accommodated under nearly all
§ 35.137(c), public entities must adopt While a public entity may inquire into
policies and procedures regarding the circumstances? Conversely, are there
whether the individual is using the
accommodation of power-driven types of mobility devices that almost
device due to a disability, the entity
mobility devices other than wheelchairs always will require an assessment to
may not inquire about the nature and
and scooters that are designed to assess determine whether they should be
extent of the disability, as provided in
whether allowing an individual with a accommodated? Please provide
§ 35.137(d).
disability to use a power-driven The Department anticipates that, in examples of devices and circumstances
mobility device is reasonable and does many circumstances, allowing the use of in your responses.
not result in a fundamental alteration to unique mobility devices by individuals Question 18: Should motorized
its programs, services, or activities. with disabilities will be reasonable to devices that use fuel or internal-
Public entities may establish policies provide access to a public entity’s combustion engines (e.g., all-terrain
and procedures that address and services, programs, and activities, and vehicles) be considered personal
distinguish among types of mobility that in many cases it will not mobility devices that are covered by the
devices. fundamentally alter the public entity’s ADA? Are there specific circumstances
For example, a city may determine operations and services. On the other in which accommodating these devices
that it is reasonable to allow individuals hand, the use of mobility devices that would result in a fundamental
with disabilities to use EPAMDs in a are unsafe to others, or unusually alteration?
variety of outdoor programs and Question 19: Should personal
unwieldy or disruptive, is unlikely to be
activities, but that it would not be mobility devices used by individuals
reasonable and may constitute a
reasonable to allow the use of golf cars with disabilities be categorized by
fundamental alteration.
as mobility devices in similar Consider the following examples: intended purpose or function, by indoor
circumstances. At the same time, the or outdoor use, or by some other factor?
Example 1: Although people who do not Why or why not?
city may address its concerns about have mobility impairments are prohibited
factors such as space limitations by from operating EPAMDs at the fairgrounds, Section 35.138 Ticketing
disallowing EPAMDs by members of the the county has developed a policy allowing
general public. people with disabilities to use EPAMDs as The ticketing policies and practices of
Section 35.137(c) lists permissible their mobility device on the fairgrounds. The public entities are subject to title II’s
factors that a public entity may consider county’s policy states that EPAMDs are nondiscrimination provisions. See 42
in determining whether the use of allowed in all areas of the fairgrounds that U.S.C. 12132. Through the investigation
different types of power-driven mobility are open to pedestrians as a reasonable of complaints, its enforcement actions,
devices by individuals with disabilities modification to its general policy on and public comments related to
EPAMDs. The county determined that the
may be permitted. In developing ticketing, the Department is aware of the
venue provides adequate space for a larger
policies, public entities should group device such as an EPAMD and that it does need to provide regulatory guidance to
power-driven mobility devices by type not fundamentally alter the nature of the entities involved in the sale or
(e.g., EPAMDs, golf cars, gasoline- fair’s activities and services. The county’s distribution of tickets. With this NPRM,
powered vehicles, wheelchairs designed policies do, however, require that EPAMDs the Department proposes to include a
for outdoor use, and other devices). A be operated at a safe speed limit. A county section on ticketing within the general
blanket exclusion of all devices that fall employee may inquire at the ticket gate requirements of subpart B.
under the definition of other power- whether the device is needed due to the In response to the ANPRM,
user’s disability and also inform an
driven mobility devices in all locations individual with a disability using an EPAMD
individuals with disabilities and related
would likely violate the proposed that the county policy requires that it be advocacy groups commented that the
regulation. operated at or below the designated speed reduced requirements for accessible
The factors listed in § 35.137(c)(1)–(3) limit. seating in assembly areas underscored
may be used in order to develop policies Example 2: The city has developed a the need for clarification from the
regarding the use of other power-driven policy specific to city hall regarding the use Department on ticketing related issues.
mobility devices by people with of EPAMDs (i.e., users who do not need the One disability advocacy group asserted
disabilities. The dimensions, weight, devices due to disability are required to leave that in order to guarantee equal access
and other characteristics of the mobility the devices outside the building). While most to assembly areas for people with
jlentini on PROD1PC65 with PROPOSALS3
device in relation to a wheelchair or of city hall is spacious, the city has disabilities, it is necessary to provide
determined that it is not reasonable to allow
scooter, as well as the device’s people with disabilities to bring their
complementary design standards, sales
maneuverability and speed, may be EPAMDs into the recorder of deeds office, policies, and operational procedures.
considered. Another permissible factor which is quite small, and the device’s The Department agrees that more
is the risk of potential harm to others. dimensions make it unsafe and unwieldy in explicit regulation is needed to ensure
The use of gas-powered golf cars by this situation. If it is not possible for the that individuals with disabilities are not
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34483
improperly denied access to events entities that provide a service or system permitted to do. A facility must provide
because of discriminatory procedures by which individuals can purchase a portable seat for the transferee to use
for the sale of wheelchair spaces. The event tickets, and is not limited to a if necessary.
Department’s enforcement actions have venue’s operation of its own ticketing Secondary market ticket sales. The
demonstrated that some venue systems. Department is aware that the proposed
operators, ticket sellers, and distributors The Department has received rule may represent a significant change
are not properly implementing title II’s numerous complaints from individuals in practice for many public entities with
general nondiscrimination provisions. who were denied the opportunity to respect to ‘‘secondary market’’ ticket
The Department has entered into acquire tickets for accessible seats sales. Because the secondary market is
agreements addressing problems with through avenues such as ticketing pre- a recognized—and often integral—part
ticketing sales and distribution by sales, promotions, lotteries, or wait lists. of the ticketing distribution system for
requiring specific modifications to The proposed rule, at § 35.138(b), makes many venues and activities, individuals
ticketing policies. While these clear that public entities must include with disabilities will be denied an equal
negotiated settlement agreements and accessible seating in all stages of the opportunity to benefit from the goods
consent decrees rest on fundamental ticketing process, including pre-sales, offered—attendance at an event—if
nondiscrimination principles, they promotions, lotteries, or wait lists. public entities have no obligations with
represent solutions tailored to specific Identification of available accessible respect to accessible seating bought or
facilities. The Department believes that seating. Section 35.138(c) of the sold in this way. In conjunction with
guidance in this area is needed, but also proposed rule requires a facility to the proposed rule, the Department seeks
recognizes that ticketing practices and identify available accessible seating if comment about public entities’ current
policies vary with venue size and event seating maps, brochures, or other practices with respect to the secondary
type, and that a ‘‘one-size-fits-all’’ information is provided to the general market for tickets, and the anticipated
approach may be unrealistic. public. In the Department’s impact of the proposed rule on different
The proposed rule clarifies the investigations of theaters and stadiums, types of facilities or events. Specifically,
application of title II with respect to it has discovered that many facilities the Department would like to know:
ticketing issues in certain contexts, and lack an accurate inventory of the
Question 20: If an individual resells a
is intended to strike a balance between accessible seating in their venues, and
ticket for accessible seating to someone
a covered entity’s desire to maximize that this information gap results in lost
who does not need accessible seating,
ticket sales and the rights of individuals opportunities for patrons who need
should the secondary purchaser be
with disabilities to attend events in accessible seating. For some public
required to move if the space is needed
assembly areas in a manner that is equal entities, multiple inventories may be
for someone with a disability?
to that afforded to individuals without required to account for different uses of
disabilities. The proposed rule does not, the facilities because the locations of Question 21: Are there particular
however, purport to cover or clarify all accessible seating may change in an concerns about the obligation imposed
aspects or applications of title II to arena depending on whether it is used by the proposed rule in which a public
ticketing issues. Moreover, the rule for a hockey game, a basketball game, or entity must provide accessible seating,
applies only to the sale or distribution a concert. The proposed rule further including a wheelchair space where
of tickets that are sold or distributed on provides that the facility identify the needed, to an individual with a
a preassigned basis. accessible seating on publicly available disability who purchases an
Because this rule addresses ticketing seating charts. This transparency will ‘‘inaccessible’’ seat through the
policies and practices for stadiums, facilitate the accurate sale of accessible secondary market?
arenas, theaters, and other facilities in seating. Release of unsold accessible seats.
which entertainment and sporting Section 35.138(d) requires public Section 35.138(f) provides regulatory
events are held, its provisions are entities to provide individuals with guidance regarding the release of unsold
related to and informed by those in disabilities with accurate information accessible seats. Through its
proposed § 35.151(g), which establishes about the location of accessible seating. investigations, the Department has
design requirements for seating in The proposed rule specifically prohibits become familiar with the problem of
assembly areas. (Section 35.151(g) is the practice of ‘‘steering’’ individuals designated accessible seating being sold
discussed below in the section-by- with disabilities to certain wheelchair to the general public before people who
section analysis.) After the proposed spaces so that the facility can maximize need accessible seating can buy tickets.
standards are finalized, the scoping potential ticket sales for other unsold As a result, individuals who need to use
reduction will apply to all public wheelchair spaces. the accessible seating cannot attend an
entities. See proposed 28 CFR 35.133(c) Season tickets and multiple event event.
(discussed earlier in the section-by- tickets. Section 35.138(e) addresses the The Department has entered into
section analysis). sale of season tickets and other tickets agreements addressing this problem by
Ticket distribution methods. Section for multiple events. The proposed rule requiring specific modifications to
35.138(a) states the general rule that a provides that public entities must sell ticketing policies. While these
public entity shall modify its policies, season tickets or tickets for multiple negotiated settlement agreements and
practices, and procedures to ensure that events for accessible seating in the same consent decrees rest on fundamental
individuals with disabilities can manner that such tickets are sold to nondiscrimination principles, they
purchase single or multi-event tickets those purchasing general seating. The represent solutions tailored to specific
for accessible seating in the same way rule also states that spectators facilities. The Department believes that
as others (i.e., during the same hours purchasing tickets for accessible seating guidance in this area is needed, but also
jlentini on PROD1PC65 with PROPOSALS3
and through the same distribution on a multi-event basis shall be recognizes that ticketing practices and
methods as other seating is sold) unless permitted to transfer tickets for single- policies vary with venue size and event
doing so would fundamentally alter the event use by friends or associates in the type, and that a ‘‘one-size-fits-all’’
nature of its ticketing service, program, same fashion and to the same extent approach may be unrealistic. These
or activity. The proposed rule makes other spectators holding tickets for the options provide flexibility so that
clear that it is meant to reach all public same type of ticketing plan are ticketing policies can be adjusted
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34484 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
according to the venue size and event level for an event, then a percentage wheelchair seating to purchase no more
type. (determined by the ratio of the total than two tickets (for him or herself and
Facility sell-out. The approach in number of seats at that price level to the a companion), while other patrons have
§ 35.138(f)(1) allows for the release of total number of seats in the assembly significantly higher purchase limits (if
unsold accessible seating once standard area) of the number of accessible seats any). This is particularly difficult for
seats in the facility have been sold. must be provided at that price level in families, friends, or other groups larger
(Luxury boxes, club boxes, or suites are an accessible location. For example, than two that include a person who
not required to be sold out before the many theaters built prior to the passage requires accessible seating. If the ticket
remaining accessible seats are released.) of the ADA have balconies that are number is limited, the result for
To implement this option, the release of inaccessible to individuals who use wheelchair users is that parents and
unsold accessible seating should be wheelchairs, and the only wheelchair children, friends, classmates, and others
done according to an established, spaces are located in the orchestra level are separated. Section 35.138(i) clarifies
written schedule. Blocks of seats should where tickets are more expensive. If a application of title II to ameliorate such
be released in stages, and should comparably sized balcony in a theater a situation.
include tickets in a range of price built under the ADA’s new construction There are various ways that covered
categories and locations that is standards would have two wheelchair entities can accommodate groups that
representative of the range of seating spaces, the older theater must sell two require at least one wheelchair space.
that remains available to other patrons. orchestra wheelchair spaces at the The proposed regulation at § 35.138(i)(1)
Sell-outs in specific seating areas. balcony price on a first come, first would require a public entity to permit
Under the second option, § 35.138(f)(2), served basis. up to three companions to sit in a
a facility could release unsold accessible Fraudulent purchase of designated designated wheelchair area, platform, or
seating in a specific seating area once all accessible seating. The Department has cross-over aisle that is designated as a
of the standard seats in that location received numerous comments regarding wheelchair area, even if the number of
were sold out. For example, if all fraudulent attempts to purchase companions outnumber the individuals
standard seats in the orchestra level are wheelchair spaces for patrons other than requiring a wheelchair space. For
sold, the unsold accessible seats in the those who use wheelchairs. Moreover, example, a parent who uses a
orchestra level could be released for sale the Department recognizes that wheelchair could attend a concert with
to the general public. implementation of some of its his or her spouse and their two
Sell-outs of specific price ranges. The proposals, such as public identification children, and all four could sit together
third approach described at of accessible seating, increases the in the wheelchair area. The Department
§ 35.138(f)(3) would permit a public potential for the fraudulent purchase of recognizes that some advocates may
entity to release unsold accessible seats accessible seats by those who do not object to this use of designated
in a specific price range if all other need them. The Department continues wheelchair areas because it will reduce
standard seats in that price range were to believe that requiring an individual to the amount of accessible seating
sold out. For example, if all $50 seats provide proof that he or she is a person available for those who need it. On
were sold, regardless of their location, with a disability is an unnecessary and balance, however, the Department
the unsold $50 accessible seats would burdensome invasion of privacy and believes that the opportunity to sit with
be released for sale to the general may unfairly deter individuals with family and friends, as other patrons do,
public. disabilities from purchasing tickets to is an integral element of the experience
Question 22: Although not included an event. of attending a ticketed event, and it is
in the proposed regulation as currently Notwithstanding this position, the an element that is often denied to
drafted, the Department is soliciting proposed rule at § 35.138(h) would individuals with disabilities.
comment on whether additional permit public entities to take certain By limiting the number of tickets that
regulatory guidance is required or steps to address potential ticket fraud. can be purchased under this provision
appropriate in terms of a more detailed Under proposed § 35.138(h)(1), a to four, the Department seeks a balance
or set schedule for the release of tickets covered entity may inquire at the time by which groups and families can be
in conjunction with the three of the ticket purchase for single-event accommodated while still leaving ample
approaches discussed above. For tickets whether the wheelchair space is space for other individuals who use
example, does the proposed regulation for someone who uses a wheelchair. wheelchairs. The Department seeks
address the variable needs of assembly Section 35.138(h)(2) addresses potential comments from individuals, business
areas covered by the ADA? Is additional ticket fraud for season or subscription entities, and advocacy organizations on
regulatory guidance required to tickets. Under this provision, a facility whether the proposed rule will
eliminate discriminatory policies, may require the purchaser to attest in appropriately effectuate the integration
practices, and procedures related to the writing that a wheelchair space is for and nondiscrimination principles
sale, holding, and release of accessible someone who uses a wheelchair. underlying the rule.
seating? What considerations should However, the regulation preserves the Question 23: Is the proposed rule
appropriately inform the determination right of an individual with a disability regarding the number of tickets that a
of when unsold accessible seating can to transfer his or her ticket for public entity must permit individuals
be released to the general public? individual events and clarifies that the who use wheelchairs to purchase
Ticket pricing. Section 35.138(g) of intermittent use of the wheelchair space sufficient to effectuate the integration of
the proposed rule addresses ticket by a person who does not use a wheelchair users with others? If not,
pricing. The proposed rule codifies the wheelchair does not constitute fraud. please provide suggestions for achieving
Department’s longstanding policy that Purchase of multiple tickets. The the same result with regard to
jlentini on PROD1PC65 with PROPOSALS3
public entities cannot impose a Department has received numerous individual and group ticket sales.
surcharge for wheelchair spaces. complaints stating that assembly Group ticket sales. Group ticket sales
Accessible seating must be made operators are unfairly restricting the present another area in which the
available at all price levels for an event. number of tickets that can be purchased Department believes additional
If an existing facility has barriers to by individuals with disabilities. Many regulatory guidance is appropriate. The
accessible seating at a particular price venues limit an individual requiring purpose of the proposed rule at
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34485
§ 35.138(i)(2) is to prevent the current proposed standards. In these as well. There are a number of
practice of separating groups in a way circumstances, the public entity is exceptions to the technical
that isolates or segregates those in the entitled to a safe harbor, and is only specifications for accessible routes, and
group who require wheelchair seating. If required to modify elements to comply there are special rules (incorporated by
a group includes one or more with the proposed standards if the reference from nationally recognized
individuals who use a wheelchair, the public entity is, independently, standards for accessibility and safety in
proposed rule requires the facility to planning an alteration that is not play areas) for accessible ground
place that group in a seating area that undertaken in fulfillment of its program surfaces. Accessible ground surfaces
includes wheelchair spaces so that, if accessibility obligations. See 28 CFR must be inspected and maintained
possible, the group can sit together. If it 35.151(b). The proposed safe harbor for regularly and frequently to ensure
is necessary to divide the group, it title II operates only with respect to continued compliance.
should be divided so that the elements that are in compliance with The Department is concerned about
individuals in the group who use a the scoping and technical specifications the potential impact of these
wheelchair are not isolated from the in either the 1991 Standards or the supplemental requirements on existing
group. In existing facilities that lack UFAS; it does not apply to elements that play areas that are not otherwise being
accessible seating in certain areas, e.g., are addressed by supplemental altered. The program accessibility
a theater with an inaccessible balcony, requirements in the 2004 ADAAG. The requirement does not require public
the proposed regulation would require Department proposes a new entities to make structural modifications
covered entities to seat at least three § 35.150(b)(2), denominated Safe to existing facilities except where such
companions with the individuals using Harbor, to § 35.150 (Program modifications may be necessary to make
a wheelchair in the accessible seating Accessibility). Section 35.150(a) the program or service, when
area of the orchestra. includes general provisions, and considered as a whole, accessible to
paragraph (b) of that section describes individuals with disabilities. Although
Subpart D—Program Accessibility the methods by which a public entity play areas may be more likely than other
Section 35.150(b)(2) Safe Harbor complies with the program accessibility types of facilities to require structural
requirements. Historic preservation modifications, this does not mean that
Under the ‘‘program accessibility’’ programs, which are addressed in every existing playground operated by a
requirement in title II, each service, § 35.150(b)(2) in the current regulation, city or county must be made accessible.
program, or activity, when viewed in its have been moved to § 35.150(b)(3) in the Compliance with the program
entirety, must be readily accessible to proposed rule. accessibility requirement turns on the
and usable by individuals with The Department proposes in accessibility of the program—i.e., the
disabilities. 28 CFR 35.150 (emphasis § 35.150(b)(2) that if elements in an program of providing and maintaining
added). The title II regulation makes existing facility are in compliance with public playgrounds—rather than the
clear that, unlike public either the 1991 Standards or UFAS, the accessibility of each particular facility
accommodations under title III, a public public entity is not required to alter— used to provide that program. Where a
entity is not required to make each of its or retrofit again—such elements to public entity provides and maintains
existing facilities accessible to and reflect incremental changes in the 2004 multiple play areas as part of its
usable by individuals with disabilities. ADAAG simply because the Department program of providing public
28 CFR 35.150(a)(1). Moreover, public is adopting new ADA Standards. As playgrounds, for purposes of the
entities are not required to make explained above, this safe harbor program accessibility requirement, only
structural changes to existing facilities operates on an element-by-element a reasonable number but at least one of
where other methods are effective in basis, and does not apply to elements such play areas would be required to
ensuring program accessibility. 28 CFR subject to requirements that are not undertake structural modifications to
35.150(b)(1). included in the current ADA Standards provide access for individuals with
Given that program accessibility is not for Accessible Design, but rather are disabilities. The same reasoning would
an element-by-element inquiry, but supplemental requirements in the 2004 apply where an existing site (e.g., a state
rather looks to the program when ADAAG. park) provides multiple play areas
‘‘viewed in its entirety,’’ and that designed for the same age group.
structural changes are not always Section 35.150(b)(4) and (5) Existing The Department notes that the
required in order to provide access to Play Areas and Recreation Facilities requirement to provide a reasonable
the programs, services, or activities of a Play areas. Sections 206.2.17, 206.7.8, number of accessible play areas is
public entity, the Department believes and 240.1 of the 2004 ADAAG provide consistent with the longstanding
that the program accessibility a detailed set of requirements for newly program accessibility rules, which
requirement, itself, may appropriately constructed and altered play areas. provide that it is not necessary for every
mitigate any burdens on public entities Section 240.2.1.1 of the 2004 ADAAG facility to be accessible, provided that
with respect to their existing facilities. requires that at least one ground level the program, when viewed in its
Nevertheless, in order to provide play component of each type provided entirety, is readily accessible to
certainty to public entities and (e.g., for different experiences such as individuals with disabilities. In
individuals with disabilities alike, the rocking, swinging, climbing, spinning, situations where a public entity
Department proposes to add a provision and sliding) must be accessible and provides the services of one program at
to the program accessibility requirement connected to an accessible route. In multiple sites (e.g., a town with ten
in § 35.150 that would clarify that addition, if elevated play components parks), the public entity would focus on
public entities that have brought are provided, entities must make at least whether the number and location of the
jlentini on PROD1PC65 with PROPOSALS3
elements into compliance in existing fifty percent (50%) of the elevated play accessible parks offer comparable
facilities are not, simply because of the components accessible and connect convenience to persons with disabilities
Department’s adoption of the 2004 them to an accessible route, and may and whether the range of programs and
ADAAG as its new standards, required have to make an additional number of services offered at the accessible parks
to modify those elements in order to ground level play components are equivalent to the range offered at the
reflect incremental changes in the (representing different types) accessible inaccessible parks. At a minimum, a
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34486 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
public entity must provide at least one Question 26: The Department requests percent (50%) of the elevated play
accessible facility unless the public public comment with respect to the components are accessible.
entity can demonstrate that providing application of these requirements to Many commenters advised the
the accessible facility would result in a existing play areas. What is the ‘‘tipping Department that making elevated play
fundamental alteration in the nature of point’’ at which the costs of compliance components accessible in existing play
its program or activity or in undue with the new requirements for existing areas that are not otherwise being
financial and administrative burdens. play areas would be so burdensome that altered would impose an undue burden
However, determining how many more the entity would simply shut down the on most facilities. Given the nature of
than one would be ‘‘reasonable’’ playground? the element at issue, retrofitting existing
requires a careful analysis of factors in The Department is proposing two elevated play components in play areas
order to determine how many accessible specific provisions to reduce the impact to meet the scoping and technical
facilities are necessary to ensure that the on existing facilities that undertake specifications in the alteration standard
covered program is accessible. Factors structural modifications pursuant to the would be difficult and costly, and in
to be considered include, but are not program accessibility requirement. First, some instances, infeasible. In response
limited to, the size of the public entity, the Department proposes to add to expressed concerns, the Department
geographical distance between sites, § 35.150(b)(5)(i) to provide that existing proposes to reduce the scoping for
travel times to the sites, the number of play areas that are less than 1,000 existing play areas that are not being
sites, and availability of public square feet in size and are not otherwise altered by permitting entities to
transportation to the sites. being altered need not comply with the substitute ground level play
The Department is proposing several scoping and technical requirements for components for elevated play
specific provisions and posing play areas in section 240 of the 2004 components. Entities that provide
additional questions in an effort to both ADAAG. The Department selected this elevated play components that do not
mitigate and gather information about size based on the provision in section comply with section 240.2.2 of the 2004
the potential burden of the 1008.2.4.1 of the 2004 ADAAG, ADAAG would be deemed in
supplemental requirements on existing Exception 1, permitting play areas less compliance for purposes of the program
public facilities. than 1,000 square feet in size to provide accessibility requirement as long as the
Question 24: Is a ‘‘reasonable number, accessible routes with a reduced clear number of accessible ground level play
but at least one’’ a workable standard width (44 inches instead of 60 inches). components is equal to the sum of (a)
for determining the appropriate number In its 2000 regulatory assessment for the the number of ground level play
of existing play areas that a public play area guidelines, the Access Board components required to comply with
entity must make accessible for its assumed that such ‘‘small’’ play areas section 240.2.1 of the 2004 ADAAG (as
program to be accessible? Should the represented only about twenty percent provided by Table 240.2.1.2, but at least
Department provide a more specific (20%) of the play areas located in public one of each type) and (b) the number of
scoping standard? Please suggest a more schools, and none of the play areas elevated play components required to
specific standard if appropriate. In the located in city and state parks (which comply with 2004 ADAAG section
alternative, should the Department the Board assumed were typically larger 240.2.2 (namely, fifty percent (50%) of
provide a list of factors that a public than 1,000 square feet). If these all elevated play components). In
entity could use to determine how many assumptions are correct, the proposed existing play areas that provide a
of its existing play areas to make exemption would have relatively little limited number of ground level play
accessible, e.g., number of play areas, impact on most existing play areas components, qualifying for this
travel times, or geographic distances operated by public entities, while still exception may require providing
between play areas, and the size of the mitigating the burden on those smaller additional ground level play
public entity? public entities to which it did apply. components.
State and local governments may have Question 27: The Department would While this provision may result in
already adopted accessibility standards like to hear from public entities and less accessibility than the application of
or codes similar to the 2004 ADAAG individuals with disabilities about the the alteration standard, public entities
requirements for play and recreation potential effect of this approach. Should will likely be more willing to
areas, but which might have some existing play areas less than 1,000 voluntarily undertake structural
differences from the Access Board’s square feet be exempt from the modifications in play areas if they
guidelines. requirements applicable to play areas? anticipate that compliance will be
Question 25: The Department would Secondly, the Department proposes to straightforward and relatively
welcome comment on whether there are add § 35.150(b)(4)(i) to provide that inexpensive. In addition, for existing
state and local standards specifically existing play areas that are not being play areas with limited resources, it will
regarding play and recreation area altered will be permitted to meet a often be more efficient to devote
accessibility. To the extent that there are reduced scoping requirement with resources to making the ground surface
such standards, we would welcome respect to their elevated play of the play area accessible, which is
comment on whether facilities currently components. Elevated play components, necessary to provide an accessible route
governed by, and in compliance with, which are found on most playgrounds, to any play components. Reduced
such state and local standards or codes are the individual components that are scoping for elevated play components
should be subject to a safe harbor from linked together to form large-scale could also minimize the risk that
compliance with applicable composite playground equipment (e.g., covered entities will delay compliance,
requirements in the 2004 ADAAG. We the monkey bars attached to the remove elevated play components, or
would also welcome comment on suspension bridge attached to the tube simply close the play area. It also
jlentini on PROD1PC65 with PROPOSALS3
whether it would be appropriate for the slide, etc.). The proposed standards provides a bright-line rule for which
Access Board to consider provide that a play area that includes compliance can be easily evaluated.
implementation of guidelines that both ground level and elevated play Question 28: The Department would
would permit such a safe harbor with components must ensure that a like to hear from public entities and
respect to play and recreation areas specified number of the ground level individuals with disabilities about the
undertaking alterations. play components and at least fifty potential effect of this approach. Should
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34487
existing play areas be permitted to provide a list of factors that a public accessible and, for some people, can be
substitute additional ground level play entity could use to determine how many an important part of maintaining health.
components for the elevated play of its existing swimming pools to make Other commenters noted that having
components it would otherwise have accessible, e.g., number of swimming two accessible means of egress from a
been required to make accessible? Are pools, travel times or geographic pool can be a significant safety feature
there other select requirements distances between swimming pools, and in the event of an emergency. It may be,
applicable to play areas in the 2004 the size of the public entity? however, that as a practical matter the
ADAAG for which the Department The Department is proposing two reduction in scoping may not be
should consider exemptions or reduced specific provisions to minimize the significant, as the measures required to
scoping? potential impact of the new meet the alteration standards for
Question 29: The Department would requirements on existing swimming accessible entries would often impose
welcome comment on whether it would pools that undertake structural an undue burden even if considered on
be appropriate for the Access Board to modifications pursuant to the program a case-by-case basis.
consider implementation of guidelines accessibility requirement. First, the Question 31: The Department would
for play and recreational facilities Department is proposing to add like to hear from public entities and
undertaking alterations that would § 35.150(b)(5)(ii) to provide that individuals with disabilities about this
permit reduced scoping of requirements swimming pools that have over 300 exemption. Should the Department
or substitution of ground level play linear feet of swimming pool wall and allow existing public entities to provide
components in lieu of elevated play are not being altered will be required to only one accessible means of access to
components, as the Department is provide only one (rather than two) swimming pools more than 300 linear
proposing with respect to barrier accessible means of entry, at least one feet long?
removal obligations for certain play or of which must be a sloped entry or a Secondly, the Department proposes to
recreational facilities. pool lift. This provision represents a add § 35.150(b)(5)(ii) to provide that
Swimming pools. As noted earlier, the less stringent requirement than the existing swimming pools that have less
program accessibility requirement does requirement in 2004 ADAAG section than 300 linear feet of swimming pool
not require public entities to make 242.2, which requires such pools, when wall and are not being altered need not
structural modifications to existing newly constructed or altered, to provide undertake structural modifications to
facilities except where such two accessible means of entry. Under comply with the scoping and technical
modifications may be necessary to make this proposal, for purposes of the requirements for swimming pools in
the program or service, when program accessibility requirement, section 242.2 of the 2004 ADAAG. In its
considered as a whole, accessible to swimming pools operated by public 2002 regulatory assessment for the
individuals with disabilities. Although entities would be required to have at recreation guidelines, the Access Board
swimming pools, like play areas, may be least one accessible entry. assumed that pools with less than 300
more likely than other types of facilities Commenters responding to the feet of linear pool wall would represent
to require structural modifications, this ANPRM noted that the two-means-of- ninety percent (90%) of the pools in
does not mean that every existing entry-standard, if applied to existing public high schools; forty percent (40%)
swimming pool operated by a city or swimming pools, will of the pools in public parks and
county must be made accessible. disproportionately affect small public community centers; and thirty percent
Compliance with the program entities, both in terms of the cost of (30%) of the pools in public colleges
accessibility requirement turns on the implementing the standard and and universities. If these assumptions
accessibility of the program—i.e., the anticipated litigation costs. Larger are correct, the proposed exemption
program of providing and maintaining public entities benefit from economies would have the greatest impact on the
public swimming pools—rather than the of scale, which are not available to small accessibility of swimming pools in
accessibility of each particular facility entities. Although complying with the public high schools.
used to provide that program. Where a alteration standard would impose an Question 32: The Department would
public entity provides and maintains undue burden on many small public like to hear from public entities and
multiple swimming pools as part of its entities, the litigation-related costs of individuals with disabilities about the
program of providing public swimming proving that such compliance is not potential effect of this approach. Should
pools, for purposes of the program necessary to provide program access existing swimming pools with less than
accessibility requirement, only a may be significant. Moreover, these 300 linear feet of pool wall be exempt
reasonable number but at least one of commenters argue, the immediacy of from the requirements applicable to
such swimming pools would be perceived noncompliance with the swimming pools?
required to undertake structural standard—it will usually be readily Wading pools. Section 242.3 of the
modifications to provide access for apparent whether a public entity has the 2004 ADAAG provides that newly
individuals with disabilities. The same required accessible entry or entries— constructed or altered wading pools
reasoning would apply where an makes this element particularly must provide at least one sloped means
existing site (e.g., a city recreation vulnerable to serial ADA litigation. The of entry to the deepest part of the pool.
center) provides multiple swimming reduced scoping would apply to all The Department is concerned that
pools serving the same purpose. public entities, regardless of size. installing a sloped entry in existing
Question 30: Is a ‘‘reasonable number, The Department recognizes that this wading pools may not be feasible for a
but at least one’’ a workable standard approach could reduce the accessibility significant proportion of public entities
for determining the appropriate number of larger swimming pools compared to and is considering creating an
of existing swimming pools that a public the requirements in the 2004 ADAAG. exemption for existing wading pools
jlentini on PROD1PC65 with PROPOSALS3
entity must make accessible for its Individuals with disabilities and that are not being altered.
program to be accessible? Should the advocates were particularly concerned Question 33: What site constraints
Department provide a more specific about the accessibility of pools, and exist in existing facilities that could
scoping standard? Please suggest a more noted that for many people with make it difficult or infeasible to install
specific standard if appropriate. In the disabilities, swimming is one of the few a sloped entry in an existing wading
alternative, should the Department types of exercise that is generally pool? Should existing wading pools that
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34488 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
are not being altered be exempt from the constraints that would make require at least twenty-five percent
requirement to provide a sloped entry? compliance with this requirement (25%) of railings at fishing piers and
Saunas and steam rooms. The infeasible? platforms to be no higher than 34 inches
Department is proposing one specific Areas of sport activity. Sections high, so that a person seated in a
provision to minimize the potential 206.2.2 and 206.2.12 of the 2004 wheelchair can fish over the railing, to
impact of the new requirements on ADAAG require each area of sport be dispersed along the pier or platform,
existing saunas and steam rooms. activity (e.g., courts and playing fields, and to be on an accessible route. (An
Section 241 of the 2004 ADAAG whether indoor or outdoor) to be served exception permits railings to comply,
requires newly constructed or altered by an accessible route. In court sports, instead, with the model codes, which
saunas and steam rooms to meet the accessible route would also have to permit railings to be 42 inches high.) If
accessibility requirements, including directly connect both sides of the court. gangways (where only one end of route
accessible turning space and an For purposes of the program is attached to land) and floating piers
accessible bench. Where saunas or accessibility requirement, as with play (where neither end is attached to land)
steam rooms are provided in clusters, areas and swimming pools, where an are involved, a number of exceptions are
five percent (5%), but at least one sauna existing facility provides multiple areas provided from the general standards for
or steam room in each cluster, will have of sport activity that serve the same accessible routes in order to take into
to be accessible. The Department purpose (e.g., multiple soccer fields), account the difficulty of meeting
understands that many saunas are only a reasonable number but at least accessibility slope requirements due to
manufactured (pre-fabricated) and come one (rather than all) would need to meet fluctuations in water level. In existing
in standard sizes (e.g., two-person or accessibility requirements. facilities, moreover, gangways need not
four-person), and that the two-person Question 36: Should the Department be lengthened to meet the requirement
size may not be large enough to meet the create an exception to this requirement (except, in an alteration, as may be
turning space requirement. Therefore, for existing courts (e.g., tennis courts) required by the path of travel
the Department proposes in that have been constructed back-to-back requirement).
§ 35.150(b)(5)(iii) to specify that existing without any space in between them? Question 38: The Department is
saunas or steam rooms that have a Boating facilities. Sections 206.2.10, interested in collecting data regarding
capacity of only two persons and are not 235.2 and 235.3 of the 2004 ADAAG the impact of this requirement on
being altered need not undertake require a specified number of boat slips existing facilities. Are there issues (e.g.,
structural modifications to comply with and boarding piers at boat launch ramps space limitations) that would make it
the scoping and technical requirements to be accessible and connected to an difficult to provide an accessible route
for saunas and steam rooms in section accessible route. In existing boarding to existing fishing piers and platforms?
241 of the 2004 ADAAG. While this piers, the required clear pier space may Miniature golf courses. Sections
exception may limit the accessibility of be perpendicular to and extend the 206.2.16, 239.2, and 239.3 of the 2004
small existing saunas or steam rooms in width of the boat slip if the facility has ADAAG require at least fifty percent
public facilities, such facilities would at least one accessible boat slip, (50%) of the holes on miniature golf
remain subject to the ADA’s general providing that more accessible slips courses to be accessible and connected
requirement to ensure that individuals would reduce the total number (or to an accessible route (which must
with disabilities have an equal widths) of existing boat slips. Accessible connect the last accessible hole directly
opportunity to enjoy the services and boarding piers at boat launch ramps to the course entrance or exit);
amenities of their facilities. must comply with the requirements for generally, the accessible holes would
Exercise machines. Sections 236 and accessible boat slips for the entire length have to be consecutive ones. Specified
206.2.13 of the 2004 ADAAG require of the pier. If gangways (only one end exceptions apply to accessible routes
one of each type of fixed exercise of route is attached to land) and floating located on the playing surfaces of holes.
machine to meet clear floor space piers (neither end is attached to land) Question 39: The Department is
specifications and to be on an accessible are involved, a number of exceptions are considering creating an exception for
route. Types of machines are generally provided from the general standards for existing miniature golf facilities that are
defined according to the muscular accessible routes in order to take into of a limited total square footage, have a
groups exercised or the kind of account the difficulty of meeting limited amount of available space
cardiovascular exercise provided. accessibility slope requirements due to within the course, or were designed with
Question 34: Will existing facilities fluctuations in water level. In existing extreme elevation changes. If the
have to reduce the number of available facilities, moreover, gangways need not Department were to create such an
exercise equipment and machines in be lengthened to meet the requirement exception, what parameters should the
order to comply? What types of space (except in an alteration, as may be Department use to determine whether a
limitations would affect compliance? required by the path of travel miniature golf course should be exempt?
Team or player seating areas. Section requirement).
221.2.1.4 of the 2004 ADAAG requires Question 37: The Department is Section 35.151 New Construction and
one or more wheelchair spaces to be interested in collecting data regarding Alterations
provided in each team or player seating the impact of these requirements in Section 35.151, which provides that
area with fixed seats, depending upon existing boating facilities. Are there those buildings that are constructed or
the number of seats provided for issues (e.g, space limitations) that would altered by, on behalf of, or for the use
spectators. For bowling lanes, the make it difficult to provide an accessible of a public entity shall be designed,
requirement would be limited to lanes route to existing boat slips and boarding constructed, or altered to be readily
required to be accessible. piers at boat launch ramps? To what accessible to and usable by individuals
jlentini on PROD1PC65 with PROPOSALS3
Question 35: Are team or player extent do the exceptions for existing with disabilities, is unchanged in the
seating areas in certain types of existing facilities (i.e., with respect to boat slips proposed rule, but current § 35.151(a)
facilities (e.g., ice hockey rinks) more and gangways) mitigate the burden on will be redesignated as § 35.151(a)(1).
difficult to make accessible due to existing facilities? The Department will add a new section,
existing designs? What types of existing Fishing piers and platforms. Sections designated as § 35.151(a)(2), to provide
facilities typically have design 206.2.14 and 237 of the 2004 ADAAG that full compliance with the
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34489
requirements of this section is not The Department proposes to add function unless the provision of
required where an entity can § 35.151(b)(4) in order to make the path restrooms is the major reason that the
demonstrate that it is structurally of travel requirement in title II facility is maintained by a public entity,
impracticable to meet the requirements. consistent with that in title III. Both the such as at a highway rest stop. In that
Full compliance will be considered Uniform Federal Accessibility situation, a restroom would be
structurally impracticable only in those Standards (UFAS) and the title III considered to be an ‘‘area containing a
rare circumstances when the unique regulation contain requirements for primary function’’ of the facility.
characteristics of terrain prevent the provision of an accessible ‘‘path of The requirement for an accessible
incorporation of accessibility features. travel’’ to the altered area when an path of travel does not apply, however,
This exception is now contained in the existing facility is altered, although the to the extent that the cost and scope of
title III regulation and in the 1991 circumstances that trigger the alterations to the path of travel is
Standards (applicable to both public requirements are somewhat different disproportionate to the cost of the
accommodations and facilities used by under each statute. Under section overall alteration, as determined under
public entities), so it has applied to any 4.1.6(3) of UFAS, an accessible route to criteria established by the Attorney
covered facility that was constructed the altered area, an accessible entrance, General. Sections 227, 42 U.S.C. 12147,
under the 1991 Standards since the and (where applicable) accessible toilet and 242, 42 U.S.C. 12162, of the ADA
effective date of the ADA. The facilities must be provided when a adopt the same requirement for public
Department is adding it to the text of substantial alteration is made to an transportation facilities under title II.
§ 35.151 to maintain consistency existing building. An alteration is Section 202.4 of the proposed
between the design requirements that considered ‘‘substantial’’ if the total cost standards adopts the statutory path of
apply under title II and those that apply of all alterations within any twelve travel requirement, and § 36.403 of the
under title III. month period amounts to fifty percent Department’s title III regulation
(50%) or more of the full and fair cash establishes the criteria for determining
Section 35.151(b) Alterations when the cost of alterations to the path
value of the building. The proposed rule
The Department’s proposed rule eliminates the UFAS ‘‘substantial of travel is ‘‘disproportionate’’ to the
would amend § 35.151(b)(2) to make alteration’’ basis for path of travel cost of the overall alteration. The
clear that the path of travel requirements because it eliminates Department’s proposed § 35.151(b)(4)
requirements of § 35.151(b)(4) do not UFAS as an option. will adopt the language now contained
apply to measures taken solely to The path of travel requirements of the in the title III regulation in its entirety,
comply with program accessibility Department’s proposed title II rule are including the disproportionality
requirements. This amendment is based on section 303(a)(2) of the ADA, limitation (i.e., alterations made to
consistent with § 36.304(d)(1) of the title which provides that when an entity provide an accessible path of travel to
III regulation, which states that ‘‘[t]he undertakes an alteration to a place of the altered area would be deemed
path of travel requirements of § 36.403 public accommodation or commercial disproportionate to the overall alteration
shall not apply to measures taken solely facility that affects or could affect the when the cost exceeds twenty percent
to comply with the barrier removal usability of or access to an area that (20%) of the cost of the alteration to the
requirements of this section.’’ contains a primary function, the entity primary function area).
The two requirements for alterations shall ensure that, to the maximum
to historic facilities enumerated in Section 35.151(c) Accessibility
extent feasible, the path of travel to the Standards for New Construction and
current § 35.151(d)(1) and (2) have been altered area—and the restrooms,
combined under proposed Alterations
telephones, and drinking fountains
§ 35.151(b)(3), and one substantive serving it—is readily accessible to and Section 35.151(c) proposes to adopt
change is proposed. Proposed usable by individuals with disabilities, Parts I and III of the Americans with
§ 35.151(b)(3) provides that alterations including individuals who use Disabilities Act and Architectural
to historic properties shall comply, to wheelchairs. Barriers Act Guidelines, 69 FR 44084
the maximum extent feasible, with the The Department proposes to add a (July 23, 2004) (2004 ADAAG) as the
provisions applicable to historic provision to the path of travel ADA Standards for Accessible Design
properties in the design standards requirement in § 35.151(b)(4)(ii)(C) that (proposed standards). As the
specified in § 35.151(c). Currently, the would clarify that public entities that Department noted above, the
regulation provides that alterations to have brought required elements of the development of these proposed
historic facilities shall comply with path of travel into compliance are not standards represents the culmination of
section 4.1.7 of UFAS or section 4.1.7 of required to modify those elements in a lengthy effort by the Access Board to
the 1991 Standards. See 28 CFR order to reflect incremental changes in update its guidelines, to make the
35.151(d)(1). However, the proposed the proposed standards when the public federal guidelines consistent to the
regulation requires that alterations to entity alters a primary function area that extent permitted by law, and to
historic properties on or after six is served by the element. In these harmonize the federal requirements
months after the effective date of the circumstances, the public entity is with the private sector model codes that
proposed regulation comply with the entitled to a safe harbor, and is only form the basis of many state and local
proposed standards, not UFAS or the required to modify elements to comply building code requirements. The full
1991 Standards. See § 35.151(c). The with the proposed standards if the text of the 2004 ADAAG is available for
substantive requirement in current public entity is planning an alteration to public review on the ADA Home Page
§ 35.151(d)(2)—that alternative methods the element. (http://www.ada.gov) and on the Access
of access shall be provided pursuant to The proposed rule provides that areas Board’s Web site (http://www.access-
jlentini on PROD1PC65 with PROPOSALS3
the requirements of § 35.150 if it is not such as mechanical rooms, boiler rooms, board.gov). The Access Board site also
feasible to provide physical access to an supply storage rooms, employee lounges includes an extensive discussion of the
historic property in a manner that will and locker rooms, janitorial closets, development of the 2004 ADAAG, and
not threaten or destroy the historic entrances, and corridors are not areas a detailed comparison of the 1991
significance of the building or facility— containing a primary function. Nor are Standards, the 2004 ADAAG, and the
is unchanged. restroom areas containing a primary 2003 International Building Code.
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34490 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
Appendix A to this proposed rule is in 28 CFR part 36, subpart F. Revisions requirements. To avoid placing the
an analysis of the major changes in the to that process are being proposed in an burden of complying with both
proposed standards and a discussion of NPRM to amend the title III regulation standards on public entities, the
the public comments that the that is being published elsewhere in the Department will coordinate a
Department received on specific Federal Register today. In addition, the government-wide effort to revise federal
sections of the 2004 ADAAG. Comments Department operates an extensive agencies’ section 504 regulations to
discussing the costs and benefits of the technical assistance program. The adopt the 2004 ADAAG as the standard
proposed standards have been Department anticipates that once this for new construction and alterations.
considered and taken into account by rule is final, it will issue revised The purpose of the six-month delay in
the Department’s regulatory impact technical assistance material to provide requiring compliance with the 2004
analysis. Comments on the effect of the guidance about the implementation of Standards is to allow covered entities a
proposed standards on existing facilities this rule. reasonable grace period to transition
are discussed in conjunction with the Current § 35.151(c) establishes two between the existing and the proposed
analysis of § 35.150 of this proposed standards for accessible new standards. For that reason, if a title II
rule. construction and alteration. Under entity prefers to use the 2004 ADAAG
The remaining comments addressed paragraph (c), design, construction, or as the standard for new construction or
global issues, such as the Department’s alteration of facilities in conformance alterations commenced within the six-
proposal to adopt the 2004 ADAAG as with the Uniform Federal Accessibility month period after the effective date of
the ADA Standards for Accessible Standards (UFAS) or with the 1991 the proposed regulation, such entity
Design without significant changes. Standards (which, at the time of the will be considered in compliance with
Section 204 of the ADA, 42 U.S.C. publication of the rule were also title II of the ADA.
12134, directs the Attorney General to referred to as the Americans with
issue regulations to implement title II Section 35.151(d) Scope of Coverage
Disabilities Act Accessibility Guidelines
that are consistent with the guidelines for Buildings and Facilities (ADAAG)) is The Department is proposing
published by the Access Board. deemed to comply with the § 35.151(d) to clarify that the
Commenters suggested that the requirements of this section with requirements established by this
Department should not adopt the 2004 respect to those facilities (except that if section, including those contained in
ADAAG, but should develop an the 1991 Standards are chosen, the the proposed standards, prescribe what
independent regulation. The elevator exemption does not apply). The is necessary to ensure that fixed or built-
Department is a statutory member of the 1991 Standards were based on the in elements in new or altered facilities
Access Board and was actively involved ADAAG that were initially developed are accessible to individuals with
in the development of the 2004 ADAAG. by the Access Board as guidelines for disabilities. Once the construction or
Because of its long involvement with the accessibility of buildings and alteration of a facility has been
the process, the Department does not facilities that are subject to title III. The completed, all other aspects of
believe that it is necessary or Department adopted the ADAAG as the programs, services, and activities
appropriate to begin that lengthy standards for places of public conducted in that facility are subject to
development process again. accommodation and commercial the operational requirements
Nevertheless, during the process of facilities under title III of the ADA and established in this regulation. Although
drafting this NPRM, the Department has it was published as Appendix A to the the Department often chooses to use the
reviewed the 2004 ADAAG to determine Department’s regulation implementing requirements of the 1991 Standards as a
if additional regulatory provisions are title III, 28 CFR part 36, and amended guide to determining when and how to
necessary. As a result of this review, the on Jan. 18, 1994, 59 FR 2674. make equipment and furnishings
Department decided to propose new The Department’s proposed rule accessible, those determinations fall
sections, which are contained in would revise the existing § 35.151(c) to within the discretionary authority of the
§ 35.151(d)–(h), to clarify how the adopt the 2004 ADAAG as the ADA Department and do not flow
Department will apply the proposed Standards for Accessible Design. The automatically from the Standards.
standards to social service proposed rule amends current The Department is also clarifying that
establishments, housing at places of § 35.151(c)(1) by revising the current the advisory notes, appendix notes, and
education, assembly areas, and medical language to limit its application to figures that accompany the 1991
care facilities. Each of these provisions facilities on which construction Standards do not establish separately
is discussed below. commences within six months of the enforceable requirements. This
Another general comment suggested publication of the final rule adopting clarification has been made to address
that the Department should adopt a revised standards. The proposed rule concerns expressed by commenters who
system for providing formal adds paragraph (c)(2) to § 35.151, which mistakenly believed that the advisory
interpretations of the standards, states that facilities on which notes in the 2004 ADAAG established
analogous to the code interpretation construction commences on or after the requirements beyond those established
systems used by states and the major date six months following the in the text of the guidelines (e.g.,
model codes. Because the ADA is a civil publication of the final rule shall Advisory 504.4 suggests, but does not
rights statute, not a building code, the comply with the proposed standards require, that covered entities provide
statute does not contemplate or adopted by that rule. visual contrast on stair tread nosing to
authorize a formal code interpretation As a result, for the first six months make them more visible to individuals
system. The ADA anticipated that there after the effective date of the proposed with low vision).
would be a need for close coordination regulation, public entity recipients can
jlentini on PROD1PC65 with PROPOSALS3
of the ADA building requirements with continue to use either UFAS or the 1991 Section 35.151(e) Social Service
the state and local requirements. Standards and be in compliance with Establishments
Therefore, the statute authorized the title II. Six months after the effective The Department is proposing a new
Attorney General to establish an ADA date of the rule, the new standards will § 35.151(e) that provides that group
code certification process under title III take effect. Construction in accordance homes, halfway houses, shelters, or
of the ADA. That process is addressed with UFAS will no longer satisfy ADA similar social service establishments
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34491
that provide temporary sleeping the option that harmonizes the provision that in guest rooms with more
accommodations or residential dwelling regulatory requirements: Coverage than twenty-five beds, at least five
units shall comply with the provisions under the residential dwelling units percent (5%) of the beds must have
of the proposed standards that apply to requirements. parallel clear floor space enabling a
residential facilities, including, but not In response to its request for public person using a wheelchair to access and
limited to, the provisions in §§ 233 and comments on this issue, the Department transfer to the bed. See sections 224.3,
809 of the 2004 ADAAG. received a total of eleven responses from 806.2.3, 305 of the 2004 ADAAG. The
The reasons for this proposal are industry and disability rights groups residential dwelling unit section does
based on two important changes in the and advocates. Some commenters not explicitly include a similar
2004 ADAAG. For the first time, representing disability rights groups provision.
residential dwelling units are explicitly expressed concern that the residential In response to this concern, the
covered in the 2004 ADAAG in section dwelling unit requirements in the 2004 Department has added § 35.151(e)(1),
233. Second, the language addressing ADAAG are less stringent than the which states that in settings where the
scoping and technical requirements for revised transient lodging requirements, sleeping areas include more than
homeless shelters, group homes, and and would result in diminished access twenty-five beds, and in which the
similar social service establishments is for individuals with disabilities. residential dwelling unit requirements
eliminated. Currently, such The commenters are correct that in apply, five percent (5%) of the beds
establishments are covered in section some circumstances, the residential must comply with section 806.2.3 of the
9.5 of the transient lodging section of requirements are less stringent, 2004 ADAAG (i.e., at least five percent
the 1991 Standards. The deletion of particularly with respect to accessibility (5%) must have parallel clear floor
section 9.5 creates an ambiguity of for individuals with communication- space on both sides of the bed enabling
coverage that must be addressed. related disabilities. Other differences a person using a wheelchair to access
The Department proposed in the between the residential standards and and transfer to the bed).
ANPRM that the establishments the transient lodging standards include: Definitions of residential facilities and
currently covered by section 9.5 be The residential guidelines do not transient lodging. The 2004 ADAAG
covered as residential dwelling units in require elevator access to upper floors if adds a definition of ‘‘residential
the 2004 ADAAG (section 233), rather the required accessible features can be dwelling unit’’ and modifies the current
than as transient lodging guest rooms in provided on a single, accessible level; definition of ‘‘transient lodging.’’
section 224. The Department believes and the residential guidelines do not Under section 106.5 of the 2004
this is a prudent action based on its expressly require roll-in showers. ADAAG, a ‘‘residential dwelling unit’’ is
effect on social service providers. Despite this, the Department still defined as ‘‘a unit intended to be used
Transferring coverage of social service believes that applying the residential as a residence, that is primarily long-
establishments from transient lodging to dwelling unit requirements to homeless term in nature’’ and does not include
residential dwelling units will alleviate shelters and similar social service transient lodging, inpatient medical
conflicting requirements for social establishments is appropriate to the care, licensed long-term care, and
service providers. The Department nature of the services being offered at detention or correctional facilities.
believes that a substantial percentage of those facilities, and that it will Additionally, section 106.5 of the 2004
social service providers are recipients of harmonize the ADA and section 504 ADAAG changes the definition of
federal financial assistance from the requirements applicable to those ‘‘transient lodging’’ to a building or
HUD. The Department of Health and facilities. In addition, the Department facility ‘‘containing one or more guest
Human Services (HHS) also provides believes that the proposal is consistent room[s] for sleeping that provides
financial assistance for the operation of with its obligations under the accommodations that are primarily
shelters through the Administration for Regulatory Flexibility Act to provide short-term in nature’’ and does not
Children and Families programs. As some regulatory relief to small entities include residential dwelling units
such, they are covered both by the ADA that operate on limited budgets. intended to be used as a residence. The
and section 504. The two design Nevertheless, the Department is references to ‘‘dwelling units’’ and
standards for accessibility—i.e., the requesting information from providers ‘‘dormitories’’ that are in the definition
1991 Standards and UFAS—have who operate homeless shelters, transient of the 1991 Standards are omitted from
confronted many social service group homes, halfway houses, and other the 2004 ADAAG definition of transient
providers with separate, and sometimes social service establishments, and from lodging.
conflicting, requirements for design and the clients of these facilities who would The Department said in the ANPRM
construction of facilities. To resolve be affected by this proposed change. that by applying the 2004 ADAAG
these conflicts, the residential dwelling Question 40: To what extent have residential facility standards to transient
unit standards in the 2004 ADAAG have conflicts between the ADA and section group homes, homeless shelters,
been coordinated with the section 504 504 affected these facilities? What halfway houses, and other social service
requirements. The transient lodging would be the effect of applying the establishments, these facilities would be
standards, however, are not similarly residential dwelling unit requirements more appropriately classified according
coordinated. The deletion of section 9.5 to these facilities, rather than the to the nature of the services they
of the 1991 Standards from the 2004 requirements for transient lodging guest provide, rather than the duration of
ADAAG presented two options: (1) rooms? those services. Participants in these
Require coverage under the transient Another commenter expressed programs may be housed on either a
lodging standards, and subject such concern about how the Department short-term or long-term basis in such
facilities to separate, conflicting would address dormitory-style settings facilities, and variations occur even
jlentini on PROD1PC65 with PROPOSALS3
requirements for design and in homeless shelters, transient group within the same programs and the same
construction; or (2) require coverage homes, halfway houses, and other social facility. Therefore, duration is an
under the residential dwelling unit service establishments if they are inconsistent way of classifying these
section, which harmonizes the scoped as residential dwelling units. facilities.
regulatory requirements under the ADA The commenter noted that the transient Several commenters stated that the
and section 504. The Department chose lodging requirements include a specific definitions of residential dwellings and
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34492 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
transient lodging in the 2004 ADAAG residential dwelling units built by or on summer, school dormitories become
are not clear and will confuse social behalf of public entities with the intent program areas where small groups meet,
service providers. They noted that that the finished units will be sold to receptions and educational sessions are
including ‘‘primarily long-term’’ and individual owners. held, and social activities occur. The
‘‘primarily short-term’’ in the respective ability to move between rooms, both
Section 35.151(f) Housing at a Place of
definitions creates confusion when accessible rooms and standard rooms, in
Education
applied to the listed facilities because order to socialize, to study, and to use
they serve individuals for widely The Department of Justice and the all public and common use areas is an
varying lengths of time. Department of Education share essential part of having access to these
The Department is aware of the wide responsibility for regulation and educational programs and activities.
range and duration of services provided enforcement of the ADA in If the requirements for residential
by social service establishments. postsecondary educational settings, facilities were applied to dormitories
Therefore, rather than focus on the including architectural features. operated by schools, this could hinder
length of a person’s stay at a facility, the Housing types in educational settings access to educational programs for
Department believes that it makes more range from traditional residence halls students with disabilities. The prior
sense to look at a facility according to and dormitories to apartment or discussion about social service
the type of services provided. For that townhouse-style residences. In addition establishments with sleeping
reason, rather than saying that social to the ADA and section 504, other accommodations explained that the
service establishments ‘‘are’’ residential federal laws, including the Fair Housing requirements for dispersing accessible
facilities, the Department has drafted Act of 1968, may apply. Covered entities units would not necessarily require an
the proposed § 35.151(e) to provide that subject to the ADA must always be elevator or access to different levels of
group homes, and other listed facilities, aware of, and comply with, any other a facility. Conversely, applying the
shall comply with the provisions in the federal statutes or regulations that transient lodging requirements to school
2004 ADAAG that would apply to govern the operation of residential dormitories would necessitate greater
residential facilities. properties. access throughout the facility to
Finally, the Department received Since the enactment of the ADA, the students with disabilities. Therefore, the
comments from code developers and Department has received many Department requests public comment on
architects commending the decision to questions about how the ADA applies to how to scope school dormitories.
coordinate the 2004 ADAAG with the educational settings, including school Question 42: Would the residential
requirements of section 504, and asking dormitories. Neither the 1991 Standards facility requirements or the transient
the Department to coordinate the 2004 nor the 2004 ADAAG specifically lodging requirements in the 2004
ADAAG with the Fair Housing Act’s addresses how it applies to housing in ADAAG be more appropriate for
accessibility requirements. The educational settings. Therefore, the housing at places of education? How
Department believes that the Department is proposing a new would the different requirements affect
coordination of the Fair Housing Act § 35.151(f) that provides that residence the cost when building new dormitories
with the other applicable disability halls or dormitories operated by or on and other student housing? Please
rights statutes is within the jurisdiction behalf of places of education shall provide examples, if possible.
of HUD. HUD is the agency charged comply with the provisions of the
proposed standards for transient Section 35.151(g) Assembly Areas
with the responsibility to develop
regulations to implement the Fair lodging, including, but not limited to, The Department is proposing a new
Housing Act, the Architectural Barriers the provisions in sections 224 and 806 § 35.151(g) to supplement the assembly
Act, and the provisions of section 504 of the 2004 ADAAG. Housing provided area requirements in the proposed
applicable to federally funded housing via individual apartments or standards. This provision would add
programs. townhouses will be subject to the five additional requirements.
Scoping of residential dwelling units requirements for residential dwelling Section 35.151(g)(1) would require
for sale to individual owners. In the units. wheelchair and companion seating
2004 ADAAG, the Access Board Public and private school dormitories locations to be dispersed so that some
deferred to the Department and to HUD, have varied characteristics. Like social seating is available on each level served
the standard-setting agency under the service establishments, schools are by an accessible route. This requirement
ABA, to decide the appropriate scoping generally recipients of federal financial should have the effect of ensuring the
for residential dwelling units built by or assistance and are subject to both the full range of ticket prices, services, and
on behalf of public entities with the ADA and section 504. College and amenities offered in the facility. Factors
intent that the finished units will be university dormitories typically provide distinguishing specialty seating areas
sold to individual owners. These housing for up to one academic year, are generally dictated by the type of
programs include, for example, HUD’s but may be closed during school facility or event, but may include, for
HOME program. In addition, some states vacation periods. In the summer, they example, such distinct services and
have their own state-funded programs to are often used for short-term stays of amenities as reserved seating (when
construct units for sale to individuals. one to three days, a week, or several other seats are sold on a first-come-first-
The Department expects that, after months. They are also diverse in their served basis only); reserved seating in
consultation and coordination with layout. Some have double-occupancy sections or rows located in premium
HUD, the Department will make a rooms and a toilet and bathing room locations (e.g., behind home plate or
determination in the final rule. shared with a hallway of others, while near the home team’s end zone) that are
Question 41: The Department would some may have cluster, suite, or group not otherwise available for purchase by
jlentini on PROD1PC65 with PROPOSALS3
welcome recommendations from arrangements where several rooms are other spectators; access to wait staff for
individuals with disabilities, public located inside a secure area with in-seat food or beverage service;
housing authorities, and other bathing, kitchen, and common facilities. availability of catered food or beverages
interested parties that have experience Public schools are subject to title II for pre-game, intermission, or post-game
with these programs. Please comment and program access requirements. meals; restricted access to lounges with
on the appropriate scoping for Throughout the school year and the special amenities, such as couches or
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34493
flat screen televisions; or access to team appropriate to prohibit the use of maintained in medical care facilities
personnel or facilities for team- temporary platforms in fixed seating such as hospitals. In response,
sponsored events (e.g., autograph areas. Nothing in § 35.151(g) is intended commenters representing individuals
sessions, sideline passes, or facility to prohibit the use of temporary with disabilities supported a
tours) not otherwise available to other platforms to increase the available requirement for dispersion of accessible
spectators. seating, e.g., platforms that cover a sleeping rooms among all types of
Section 35.151(g)(2) adds the basketball court or hockey rink when medical specialty areas, such as
prohibition that the seating may not be the arena is being used for a concert. obstetrics, orthopedics, pediatrics, and
placed on temporary platforms or other These areas of temporary seating do not cardiac care. Conversely, commenters
movable structures. The Department has remove required wheelchair locations representing the health care industry
become aware that a growing trend in and, therefore, would not violate the pointed out that treatment areas in
the design of large sports facilities is to requirements of this regulation. In health care facilities can be very fluid
provide wheelchair seating on addition, covered entities would still be due to fluctuation in the population and
removable platforms that seat four or permitted to use individual movable other demographic and medical funding
more wheelchair users and their seats to infill any wheelchair locations trends. The Access Board decided not to
companions. These platforms cover one that are not sold to wheelchair users. add a dispersion requirement because
or more rows of non-wheelchair seating. Section 35.151(g)(3) would require compliance over the lifetime of the
The platforms are designed to be facilities that have more than 5,000 seats facility could prove difficult given the
removed so that the part of the seating to provide at least five wheelchair need for flexibility of spaces within
bowl that they cover can be used to seat locations with at least three companion such facilities. The Department
additional ambulatory spectators. The seats for each wheelchair space. The recognizes that it may be difficult to
sale of any seats in the covered area Department is proposing this ensure a perfect distribution of rooms
requires removal of the platform, requirement to address complaints from throughout all specialty areas in a
thereby eliminating some of the many wheelchair users that the practice hospital, but the Department is
required wheelchair seating locations. of providing a strict one-to-one concerned that the absence of any
In another design that produces a relationship between wheelchair dispersion requirement may result in
similar result, removable platforms locations and companion seating often inappropriate concentrations of
configured to provide multiple, non- prevents family members from attending accessible rooms.
wheelchair seats, are installed over events together. Question 43: The Department is
some or all of the required wheelchair Section 35.151(g)(4) would provide seeking information from hospital
seating locations. In this configuration, more precise guidance for designers of designers and hospital administrators
selling a ticket for one wheelchair stadium-style movie theaters by that will help it determine how to ensure
location requires the removal of requiring such facilities to locate that accessible hospital rooms are
multiple non-wheelchair seats. wheelchair seating spaces and dispersed throughout the facility in a
The Department believes that both of companion seating on a riser or cross- way that will not unduly restrain the
these designs violate both the letter and aisle in the stadium section that satisfies ability of hospital administrators to
the intent of this regulation. Both at least one of the following criteria: allocate space as needed. The proposed
designs have the potential to reduce the (i) It is located within the rear sixty standards require that ten percent
number of available wheelchair seating percent (60%) of the seats provided in (10%) of the patient bedrooms in
spaces below the level required. an auditorium; or hospitals that do not specialize in
Reducing the number of available (ii) It is located within the area of an treating conditions that affect mobility
spaces is likely to result in reducing the auditorium in which the vertical be accessible. If it is not feasible to
opportunity for people who use viewing angles (as measured to the top distribute these rooms among each of
wheelchairs to have the same choice of of the screen) are from the 40th to the the specialty areas, would it be
ticket prices and access to amenities 100th percentile of vertical viewing appropriate to require the accessible
that are available to other patrons in the angles for all seats as ranked from the rooms to be dispersed so that there are
facility. In addition, placing wheelchair seats in the first row (1st percentile) to accessible patient rooms on each floor?
seating on removable platforms may seats in the back row (100th percentile). Are there other methods of dispersal
have a disproportionate effect on the that would be more effective?
availability of seating for individuals Section 35.151(h) Medical Care
who use wheelchairs and their Facilities Section 35.151(i) Curb Ramps
companions attempting to buy tickets The Department is proposing a new The current § 35.151(e) on curb ramps
on the day of the event. Use of § 35.151(h) on medical care facilities, has been redesignated as § 35.151(i).
removable platforms may result in which now must comply with the The Department has made a minor
instances where last minute requests for applicable sections of the proposed editorial change, deleting the phrase
wheelchair and companion seating standards. The Department also ‘‘other sloped areas’’ from the two
cannot be met because entire sections of proposes that medical care facilities that places in which it appears in the current
wheelchair seating will be lost when a do not specialize in the treatment of rule. The phrase ‘‘other sloped areas’’
platform is removed. The use of conditions that affect mobility shall lacks technical precision. Both the 1991
movable seats, on the other hand, could disperse the accessible patient Standards and the proposed standards
meet such a demand without bedrooms required by section 223.2.1 of provide technical guidance for the
eliminating blocks of wheelchair seating the proposed standards in a manner that installation of curb ramps.
at a time, converting only those seats enables patients with disabilities to
jlentini on PROD1PC65 with PROPOSALS3
that are needed for ambulatory have access to appropriate specialty Miniature Golf Courses
spectators and are not wanted by services. The Department proposes to adopt the
individuals who use wheelchairs and The Department is aware that the requirements for miniature golf courses
their companions. Access Board sought comment on how in the 2004 ADAAG. However, it
For these reasons, the Department dispersion of accessible sleeping rooms requests public comment on a suggested
believes that it is necessary and can effectively be achieved and change to the requirement for holes to
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34494 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
be consecutive. A commenter aging inmate populations, corrections requiring the use of a cane, walker,
association argued that the ‘‘miniature conferences now routinely include wheelchair, or other aids to do daily
golf experience’’ includes not only workshops on strategies to address the activities.’’ Laura M. Maruschak, Bureau
putting but also enjoyment of ‘‘beautiful needs of elderly prisoners, including the of Justice Statistics (BJS), Medical
landscaping, water elements that increased health care needs. In addition, Problems of Jail Inmates (2006),
include ponds, fountain displays, and the Federal Bureau of Prisons requires available at http://www.ojp.usdoj.gov/
lazy rivers that matriculate throughout that three percent (3%) of inmate bjs/abstract/mpji.htm. In a 1997 survey,
the course and themed structures that housing at BOP facilities is accessible. BJS reported that among state prison
allow players to be taken into a ‘fantasy- Bureau of Prisons, Design Construction inmates age 45 or older, twenty-five
like’ area.’’ Thus, requiring a series of Branch, Design Guidelines, Attachment percent (25%) said they had a ‘‘physical
consecutive accessible holes would A: Accessibility Guidelines for Design, condition.’’ Laura M. Maruschak and
limit the experience of guests with Construction, and Alteration of Federal Allen J. Beck, Ph.D., Bureau of Justice
disabilities to one area of the course. To Bureau of Prisons (Oct. 31, 2006). Statistics, Medical Problems of Inmates,
remedy this situation, the association The lack of sufficient accessible cells 1997 (2001), available at http://
suggests allowing multiple breaks in the is further demonstrated by complaints www.ojp.usdoj.gov/bjs/abstract/
sequence of accessible holes while received by the Department. The mpi97.htm.
maintaining the requirement that the Department receives dozens of Number of accessible cells. Section
accessible holes are connected by an complaints per year alleging that 232.2.1 of the 2004 ADAAG requires at
accessible route. detention and correctional facilities least two percent (2%), but no fewer
The suggested change would need to have too few accessible cells, toilets, than one, of the cells in newly
be made by the Access Board and then and showers for inmates with mobility constructed detention and correctional
adopted by the Department, and if disabilities. Other complaints allege that facilities to have accessibility features
adopted, it would apply to all miniature inmates with mobility disabilities are for individuals with mobility
golf courses, not only existing miniature housed in medical units or infirmaries disabilities. Section 232.3 provides that,
golf facilities. separate from the general population where special holding cells or special
Question 44: The Department would simply because there are no accessible housing cells are provided, at least one
like to hear from the public about the cells. Another common complaint to the cell serving each purpose shall have
suggestion of allowing multiple breaks Department is from inmates alleging mobility features. While the 2004
in the sequence of accessible holes, that they are housed at a more ADAAG establishes these requirements
provided that the accessible holes are restrictive classification level simply for cells in newly constructed detention
connected by an accessible route. because no accessible housing exists at and correctional facilities, it does not
Should the Department ask the Access the appropriate classification level. establish requirements for accessible
Board to change the current requirement Further, the Department’s onsite cells in alterations to existing facilities,
in the 2004 ADAAG? reviews and investigations of detention deferring that decision to the Attorney
and correctional facilities confirm the General.
Accessible Cells in Detention and
complaints that there are too few The Department seeks input on how
Correctional Facilities
accessible cells. The need for accessible best to meet the needs of inmates with
Through complaints received, cells can vary widely from facility to mobility disabilities in the design,
investigations, and compliance reviews facility, depending on the population construction, and alteration of detention
of jails, prisons, and other detention and housed. While the requirement that two and correctional facilities. The
correctional facilities, the Department percent (2%) of the cells have mobility Department seeks comments on the
has found that many detention and features would be adequate to meet following issues:
correctional facilities have too few or no current needs in some facilities the Question 45: Are the requirements for
accessible cells and shower facilities to Department has reviewed, it would not accessible cells in sections 232.2 and
meet the needs of their inmates with begin to meet current needs at other 232.3 of the 2004 ADAAG adequate to
mobility disabilities. The insufficient facilities. For example, at one facility meet the needs of the aging inmate
numbers of accessible cells are, in part, with a population of almost 300 population in prisons? If not, should the
due to the fact that most jails and inmates, ten percent (10%) of the percentage of cells required to have
prisons were built long before the ADA inmates use wheelchairs. The accessible features for individuals with
became law and, since then, have requirement that two percent (2%) of mobility disabilities be greater and, if so,
undergone few alterations. However, the cells at this facility must be accessible what is the appropriate percentage?
Department believes that the unmet would not meet the needs of inmates Should the requirement be different for
demand for accessible cells is also due with mobility disabilities, since it prisons than for other detention and
to the changing demographics of the would not be adequate to meet the correctional facilities?
inmate population. With thousands of needs of wheelchair users alone. Question 46: Should the Department
prisoners serving life sentences without Another facility has a geriatric unit for establish a program accessibility
eligibility for parole, prisoners are aging, 60 inmates. A two percent (2%) requirement that public entities modify
and the prison population of standard would fall far short of meeting additional cells at a detention or
individuals with disabilities and elderly the needs of this largely bedridden correctional facility to incorporate the
individuals is growing. A recent article population. Another building at this accessibility features needed by specific
illustrates this change. Since 1990, the same facility has 600 cells and houses inmates with mobility disabilities when
number of Oklahoma inmates age 45 or more than 18 inmates who need the number of cells required by sections
older has quadrupled, and, in 2006, ten accessible cells. Under the two percent 232.2 and 232.3 of the 2004 ADAAG are
jlentini on PROD1PC65 with PROPOSALS3
percent (10%) of the Oklahoma state (2%) standard, only twelve accessible inadequate to meet the needs of their
prison population was elderly. Angel cells would be required. inmate population? Under this option,
Riggs, Now in Business: Handicapped According to the Bureau of Justice additional cells provided for inmates
Accessible Prison: State Opens First Statistics (BJS) 2002 survey of jail with mobility disabilities would not
Prison for Disabled, in Tulsa World inmates, ‘‘two percent of jail inmates necessarily be required to comply with
(Feb. 20, 2007). Reflecting this trend of said they had a mobility impairment, all requirements of section 807.2 of the
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34495
2004 ADAAG, so long as a cell had the Introduction of new § 35.152 for operates the correctional facility does so
mobility features needed by the inmate detention and correctional facilities. In at the direction of the state government,
it housed. view of the statistics regarding the unless the private entity elects to use
Dispersion of cells. In the 2004 current percentage of inmates with the facility for something other than
ADAAG, Advisory 232.2 recommends mobility disabilities, the fact that prison incarceration, in which case title III may
that ‘‘[a]ccessible cells or rooms should populations include large numbers of apply. For that reason, the proposed
be dispersed among different levels of aging inmates who are not eligible for § 35.152(a) makes it clear that this
security, housing categories, and parole, the allegations in complaints section’s requirements will apply to
holding classifications (e.g., male/ received by the Department from prisons operated by public entities
female and adult/juvenile) to facilitate inmates, and the Department’s own directly or through contractual or other
access.’’ In explaining the basis for experience with detention and relationships.
recommending, but not requiring, this correctional facilities, the Department is Alterations to cells and program
type of dispersal, the Access Board proposing regulatory language in a new access. When addressing the issue of
stated that ‘‘[m]any detention and section (§ 35.152) on correctional alterations of prison cells, the
correctional facilities are designed so facilities, and seeking public comment Department must consider the realities
that certain areas (e.g., ‘shift’ areas) can on these issues. of many inaccessible state prisons and
be adapted to serve as different types of The proposed rule at § 35.152 is strained budgets against the title II
housing according to need’’ and that intended to address these frequent program access requirement for existing
‘‘[p]lacement of accessible cells or problems for inmates with disabilities facilities under § 35.150(a), which
rooms in shift areas may allow by: (1) Proposing specific requirements states: ‘‘A public entity shall operate
additional flexibility in meeting to ensure accessibility when a each service, program, or activity, so
requirements for dispersion of correctional or detention facility alters that the service, program, or activity,
accessible cells or rooms.’’ During its cells; (2) specifying that public entities when viewed in its entirety, is readily
onsite reviews of detention and shall not place inmates or detainees accessible to and usable by individuals
correctional facilities, the Department with disabilities in locations that exceed with disabilities.’’ The Supreme Court,
has observed that male and female their security classification in order to in Pennsylvania Department of
inmates, adult and juvenile inmates, provide accessible cells; (3) requiring Corrections v. Yeskey, 524 U.S. 206
and inmates at different security that public entities shall not place (1998), unanimously held that the ADA
classifications are typically housed in inmates in designated medical units and unmistakably covers state prisons and
separate areas of detention and infirmaries solely due to disability; (4) prisoners, so program access does apply
correctional facilities. In many specifying that public entities shall not to state correctional facilities; the
instances, detention and correctional relocate inmates and detainees solely question remains how best to achieve
facilities have housed inmates in based on disability to different, that within the unique confines of a
inaccessible cells, even though accessible facilities without equivalent prison system.
accessible cells were available programs than where they would Correctional and detention facilities
elsewhere in the facility, because there ordinarily be housed; and (5) requiring commonly provide a variety of different
were no cells in the areas where they that public entities shall not deprive programs for education, training,
needed to be housed, such as the inmates or detainees from visitation counseling, or other purposes related to
women’s section of the facility, the with family members by placing them in rehabilitation. Some examples of
juvenile section of the facility, or in a distant facilities based on their programs generally available to inmates
particular security classification area. disabilities. The additions to the include: Programs to obtain G.E.Ds;
Question 47: Please comment on existing title II regulation, including English as a second language; computer
whether the dispersal of accessible cells each of these proposals and any public training; job skill training and on-the-job
recommended in Advisory 232.2 of the comments received on this topic, are training; religious instruction and
2004 ADAAG should be required. discussed in turn below. guidance; alcohol and substance abuse
Alterations to cells. In section 232.2 of Contractual arrangements with groups; anger management; and other
the 2004 ADAAG, the Access Board private entities. Prisons that are built or programs. Historically, individuals with
deferred one decision to the Attorney run by private entities have caused disabilities have been excluded from
General, specifically: ‘‘Alterations to some confusion with regard to such programs because they are not
cells shall not be required to comply requirements under the ADA. The located in accessible locations, or
except to the extent determined by the Department believes that title II inmates with disabilities have been
Attorney General.’’ The security obligations extend to the public entity segregated to units without equivalent
concerns of detention and correctional as soon as the building is used by or on programs. In light of the Supreme
facilities present challenges that do not behalf of a state or local government Court’s decision in Yeskey and the
exist in other government buildings, so entity, irrespective of whether the requirements of title II, however, it is
the Department must strike a balance public entity contracts with a private critical that public entities provide these
that accommodates the accessibility entity to run the correctional facility. opportunities. The Department’s
needs of inmates with disabilities while The power to incarcerate citizens rests proposed rule aims to specifically
addressing security concerns. Therefore, with the state, not a private entity. As require equivalent opportunities to such
in the ANPRM, the Department sought the Department stated in the preamble programs.
public comment on three options for the to the current title II regulation, ‘‘[a]ll The Department wishes to emphasize
most effective means of ensuring that governmental activities of public that detention and correctional facilities
existing detention and correctional entities are covered, even if they are are unique facilities under title II.
jlentini on PROD1PC65 with PROPOSALS3
facilities are made accessible to inmates carried out by contractors.’’ 56 FR Inmates cannot leave the facilities and
with disabilities. The proposed options 35694, 35696 (July 26, 1991). If a prison must have their needs met—including
and submitted comments are discussed is occupied by state prisoners and is those relating to a disability—by the
below in the section-by-section analysis inaccessible, the state is responsible state corrections system. If the state fails
for a new proposed section on detention under title II of the ADA. In essence, the to accommodate prisoners with
and correctional facilities. private builder or contractor that disabilities, these individuals have little
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34496 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
recourse, particularly when the need is it is essential that the planning process commenter offered that the unique
urgent (e.g., an accessible toilet or clean initially assume that inmates or safety concerns of a correctional facility
needles for insulin injections for detainees with disabilities will be require a balance between staff and
prisoners with diabetes). assigned within the system under the inmate safety and accessibility. One
In light of a public entity’s obligation same criteria that would be applied to advocacy group reasoned that Option II
to provide program access to prisoners inmates who do not have disabilities. was best because it would allow prison
with disabilities, coupled with the Exceptions may be made on a case-by- operators to determine the most
Department’s proposal for a more case basis if the specific situation appropriate location for the accessible
flexible alterations standard, the warrants different treatment. For cells. One group commented that this
Department believes that the state has a example, if an inmate is deaf and option would allow the prison officials
higher responsibility to provide communicates only using sign language, more flexibility, which is necessary in a
accommodations based on disability. a prison may consider whether it is correctional environment. Equally
Therefore, it is essential that state more appropriate to give priority to important, keeping inmates in the same
corrections systems fulfill their program housing the prisoner in a facility close facility may allow them to remain closer
access requirements by adequately to his family that houses no other deaf to their homes; the third option could
addressing the needs of prisoners with inmates, or if it would be preferable to create segregated facilities. In the end,
disabilities, which include, but are not house the prisoner in a setting where this group asserted that each facility—
limited to, proper medication and there are other sign language users with rather than each system—should be
medical treatment, accessible toilet and whom he can communicate. looked at ‘‘in its entirety.’’
shower facilities, devices such as a bed Question 48: The Department is One large advocacy group stated that
transfer or a shower chair, and particularly interested in hearing from Option II was acceptable, stressing that
assistance with hygiene methods for prison administrators and from the program access requires the same
prisoners with physical disabilities. public about the potential effect of the training and work opportunities that
Therefore, the Department is proposing assignment scheme proposed here on other prisoners have. An architectural
a new § 35.152 that will require public inmates and detainees who are deaf or association asserted that this option
entities to ensure that inmates with who have other disabilities. Are there should only apply to existing
disabilities do not experience other, more appropriate tests to apply? correctional cells, but that any other
discrimination because the prison Alterations to cells. In the ANPRM, part of a correctional facility should be
facilities or programs are not accessible the Department proposed three options made accessible when it is altered. The
to them. for altering cells. The vast majority of Department, however, is only
Integration of inmates and detainees commenters (numbering three to one) addressing the alterations of prison cells
with disabilities. The Department is also supported Option II, which would allow in this rulemaking. While expressing
proposing a specific application of the substitute cells to be made accessible support for Option II, a few commenters
ADA’s general integration mandate. within the same facility, over Option III. stressed that cells made accessible in a
Section 35.152(b)(2) would require Only one commenter expressed support different location in the facility must
public entities to ensure that inmates or for Option I, and a handful of provide equal access to dining,
detainees with disabilities are housed in commenters supported Option III. The recreational, educational, medical, and
the most integrated setting appropriate comments on each option are discussed visitor areas as the former location.
to the needs of the individual. Unless below. Another commenter stated that the
the public entity can demonstrate that it Option I: Require all altered elements alternate cell location should not
is appropriate for a specific individual, to be accessible. Only one commenter require longer travel distances.
a public entity— supported this option, stating that The Department has evaluated all of
providing alternative approaches could the comments and proposes regulatory
(1) Should not place inmates or detainees allow those running the prison to language reflecting Option II, which
with disabilities in locations that exceed
provide a lower level of accessibility, provides an appropriate balance
their security classification because there are
no accessible cells or beds in the appropriate and that any deviation from the 1991 between the needs of prisoners with
classification; Standards on alterations should be disabilities and the unique requirements
(2) Should not place inmates or detainees addressed through a barrier removal of detention and correctional facilities.
with disabilities in designated medical areas plan, transition plan, or a claim of Option III: Permit substitute cells to be
unless they are actually receiving medical technical infeasibility. A few made accessible within a prison system.
care or treatment; commenters argued that this option The biggest problem that commenters
(3) Should not place inmates or detainees would result in piecemeal accessibility, had with Option III was that it would be
with disabilities in facilities that do not offer
which would be inadequate. As one more likely to separate prisoners from
the same programs as the facilities where
they would ordinarily be housed; commenter stated, ‘‘providing an their families and communities. One
(4) Should not place inmates or detainees accessible lavatory or water closet (often advocacy group asserted that this option
with disabilities in facilities further away a single unit) in an inaccessible cell could lead to the illegal segregation of
from their families in order to provide makes no sense.’’ inmates with disabilities; moreover,
accessible cells or beds, thus diminishing Option II: Permit substitute cells to be some of the accessible facilities may not
their opportunity for visitation based on their made accessible within the same have the same programs or services (e.g.,
disability. facility. Commenters supporting Option Alcoholics Anonymous, etc.). One
The Department recognizes that there II favored the more flexible plan to group argued that this option would
are a wide range of considerations that achieve accessibility within a prison give preference to the needs of the
affect decisions to house inmates or context. Many expressed support for prison system over the needs of
jlentini on PROD1PC65 with PROPOSALS3
detainees and that in specific cases this option because it would allow individuals with disabilities, while
there may be compelling reasons why a individuals with disabilities to remain another group found this option
placement that does not follow the close to their families. One commenter unacceptable because it had seen its
provisions of § 35.152(b) may, requested accessible cells by type (e.g., own state correctional system
nevertheless, comply with the ADA. women’s, men’s, juvenile, different ‘‘funneling’’ its wheelchair-using
However, the Department believes that security levels, etc.). Another inmates into a few facilities, which
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34497
sometimes exceeded the prisoners’ same facility; is integrated with other circumstances. For example, a
security level requirements. Moreover, cells to the maximum extent feasible; companion may be legally authorized to
some prisoners with disabilities are sent and has, at a minimum, equal physical make health care decisions on behalf of
to ‘‘special housing’’ units in a facility access as the original cells to areas used the patient or may need to help the
because they are the only areas with by inmates or detainees for visitation, patient with information or instructions
accessible cells. dining, recreation, educational given by hospital personnel. In addition,
In support of Option III, one state programs, medical services, work a companion may be the patient’s next
building code commissioner stressed programs, religious services, and of kin or health care surrogate with
that this plan would maximize the participation in other programs that the whom hospital personnel communicate
flexibility of corrections officials to facility offers to inmates or detainees. concerning the patient’s medical
place individuals with disabilities in condition. Moreover, a companion
facilities best suited to their needs; Subpart E—Communications could be designated by the patient to
prison accessibility extends far beyond Section 35.160 Communications communicate with hospital personnel
cells; and barrier removal in a very old about the patient’s symptoms, needs,
prison could be cost prohibitive. The Department proposes to expand
condition, or medical history. It has
Another commenter, a state department § 35.160(a) to clarify that a public
been the Department’s longstanding
of labor representative, argued that entity’s obligation to ensure effective
position that public entities are required
Option III is the most reasonable for communication extends not just to
to provide effective communication to
state-run facilities (but that Option I applicants, participants, and members
companions who are themselves deaf,
should extend to private correctional of the public with disabilities, but to
hard of hearing, or who have other
facilities) due to tremendous budget their companions as well. communication-related disabilities
constraints. As the Department The Department also proposes to add
when they accompany patients to
expressed initially, the same title II a new § 35.160(a)(2) that will define
medical care providers for treatment.
accessibility requirements apply to a ‘‘companion’’ for the purposes of this Public entities must be aware,
facility, irrespective of whether it is run section as a person who is a family however, that considerations of privacy,
directly by the state or a private entity member, friend, or associate of a confidentiality, emotional involvement,
with which the state contracts. program participant who, along with the and other factors may adversely affect
While expressing some support for participant, is an appropriate person the ability of family members or friends
Option II, one public interest law firm with whom the public entity should to facilitate communication. In addition,
representing individuals with communicate. the Department stresses that privacy and
disabilities stated that Option III is the The Department is proposing to add confidentiality must be maintained. We
best, because many older prisons are companions to the scope of coverage of note that covered entities, such as
inaccessible. ‘‘Simply having one § 35.160 to emphasize that the ADA hospitals, that are subject to the Privacy
accessible cell in an otherwise applies in some instances in which a Rule, 45 CFR parts 160, 162, and 164,
inaccessible facility does little good.’’ public entity needs to communicate of the Health Insurance Portability and
Therefore, requiring an entire prison with a family member, friend, or Accountability Act of 1996 (HIPPA),
system to have at least one fully associate of the program participant in Public Law 104–191, are permitted to
accessible facility is the better approach. order to provide its services. Examples disclose to a patient’s relative, close
The Department appreciates that of such situations include when a friend, or any other person identified by
Option III affords state corrections school communicates with the parent of the patient (such as an interpreter)
systems the maximum amount of a child during a parent-teacher meeting; relevant patient information if the
flexibility with regard to placement of in a life-threatening situation, when a patient agrees to such disclosures. The
individuals with disabilities. hospital needs to communicate with an agreement need not be in writing.
Unfortunately, many commenters injured person’s companion to obtain Covered entities should consult the
expressed legitimate concerns, most necessary information; or when a person Privacy Rule regarding other ways
significantly that prisoners will, more may need to communicate with a parole disclosures might be able to be made to
likely, be separated from family, friends, officer about a relative’s release such persons.
and community, which is critical to conditions. In such situations, if the The Department is proposing to
their rehabilitation and successful companion is deaf or hard of hearing, amend § 35.160(b)(2) to recognize that
release, and many programs at the new blind, has low vision, or has a disability the type of auxiliary aid or service
facility will not be the same. Lastly, the that affects his or her speech, it is the necessary to ensure effective
fact that certain facilities could become public entity’s responsibility to provide communication will vary in accordance
exclusively, or largely, designated for an appropriate auxiliary aid or service with the method of communication
prisoners with disabilities would result to communicate effectively with the used by the individual; the nature,
in segregation, even if it is not intended. companion. Where communication with length, and complexity of the
Proposed requirement for cell a companion is necessary to serve the communication involved; and the
alterations. The Department has interests of a person who is context in which the communication is
concluded that Option II provides the participating in a public entity’s taking place. This addition is a
best balance. Therefore, the Department services, programs, or activities, codification of the Department’s
is proposing § 35.152(c) that would effective communication must be longstanding position, which is
provide that when cells are being assured. included in the Department of Justice’s
altered, a covered entity may satisfy its This issue is particularly important in The Americans with Disabilities Act,
obligation to provide the required health care settings. The Department has Title II Technical Assistance Manual,
jlentini on PROD1PC65 with PROPOSALS3
number of cells with mobility features encountered confusion and reluctance Covering State and Local Government
by providing the required mobility by medical care providers regarding the Programs and Services (Title II TA
features in substitute cells (i.e., cells scope of their obligations with respect to Manual), II–7.1000, available at http://
other than those where alterations are such companions. Effective www.ada.gov/taman2.html. For
originally planned), provided that: Each communication with a companion with example, an individual who is deaf or
substitute cell is located within the a disability is necessary in a variety of hard of hearing may need a qualified
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34498 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
interpreter to discuss with municipal because of advances in video Question 50: The Department is
hospital personnel a diagnosis, technology, can provide a high quality considering requiring captioning of
procedures, tests, treatment options, interpreting experience. VIS can safety and emergency information in
surgery, or prescribed medication (e.g., circumvent the difficulty of providing sports stadiums with a capacity of
dosage, side effects, drug interactions, live interpreters quickly, which is why 25,000 or more within a year of the
etc.), or to explain follow-up treatments, more public entities are providing effective date of the regulation. Would a
therapies, test results, or recovery. In qualified interpreters via VIS. larger threshold, such as sports
comparison, in a simpler, shorter There are downsides to VIS, such as stadiums with a capacity of 50,000 or
interaction, the method to achieve frozen images on the screen, or when an more, be more appropriate or would a
effective communication can be more individual is in a medical care facility lower threshold, such as stadiums with
basic. For example, an individual who and is limited in moving his or her a capacity of 15,000 or more, be more
is seeking local tax forms may only need head, hands, or arms. Another downside appropriate?
an exchange of written notes to achieve is that the camera may mistakenly focus Question 51: If the Department
effective communication. on an individual’s head, which makes adopted a requirement for captioning at
The Department proposes adding communication difficult or impossible. sports stadiums, should there be a
§ 35.160(c) to codify its longstanding Also, the accompanying audio specific means required? That is, should
policy that it is the obligation of the transmission might be choppy or it be provided through any effective
public entity, not the individual with a garbled, making spoken communication means (scoreboards, line boards,
disability, to provide auxiliary aids and unintelligible. The Department is aware handheld devices, or other means), or
services when needed for effective of complaints that some public entities are there problems with some means,
communication. In particular, the have difficulty setting up and operating such as handheld devices, that should
Department receives many complaints VIS because staff have not been eliminate them as options?
from individuals who are deaf or hard appropriately trained to do so. Question 52: The Department is aware
of hearing alleging that public entities that several major stadiums that host
To address the potential problems
expect them to provide their own sign sporting events, including National
associated with the use of VIS, the
language interpreters. This burden is Football League football games at Fed
Department is proposing the inclusion
misplaced. As such, § 35.160(c)(1) Ex Field in Prince Georges County,
of four performance standards for VIS to
makes clear that a public entity may not Maryland, currently provide open
ensure effective communication: (1)
require an individual with a disability captioning of all public address
High quality, clear, real time, full-
to bring another individual to interpret announcements, and do not limit
motion video and audio over a
for him or her. captioning to safety and emergency
dedicated high speed Internet
Section 35.160(c)(2) codifies the information. What would be the effect of
Department’s policy that there are very connection; (2) a clear, sufficiently
a requirement to provide captioning for
limited instances when a public entity large, and sharply delineated picture of
patrons who are deaf or hard of hearing
may rely on an accompanying the participants’ heads, arms, hands,
for game-related information (e.g.,
individual to interpret or facilitate and fingers, regardless of the body
penalties), safety and emergency
communication: (1) In an emergency position of the person who is deaf; (3)
information, and any other relevant
involving a threat to public safety or clear transmission of voices; and (4)
announcements?
welfare; or (2) if the individual with a nontechnicians who are trained to set
disability specifically requests it, the up and operate the VIS quickly. Section 35.161 Telecommunications
accompanying individual agrees to Captioning at sporting venues. The The Department proposes to retitle
provide the assistance, and reliance on Department is aware that individuals this section ‘‘Telecommunications’’ to
that individual for this assistance is who are deaf or hard of hearing have reflect situations in which a public
appropriate under the circumstances. In expressed concerns that they are entity must provide an effective means
such instances, the public entity is still unaware of information that is provided to communicate by telephone for
required to offer to provide an over the public address systems. individuals with disabilities, and
interpreter free of charge. In no Therefore, the Department is proposing proposes several other changes.
circumstances should a child be used to requiring that sports stadiums with a The Department proposes to
facilitate communication with a parent capacity of 25,000 or more provide redesignate current § 35.161 as
about a sensitive matter. The captioning for patrons who are deaf or § 35.161(a), and to replace the term
Department has produced a video and hard of hearing for safety and ‘‘Telecommunication devices for the
several publications that explain this emergency information announcements deaf (TDD’s)’’ with ‘‘text telephones
and other ADA obligations in law made over the public address system. (TTYs).’’ Although ‘‘TDD’’ is the term
enforcement settings. They may be There are various options that could be used in the ADA, ‘‘TTY’’ has become
viewed at http://www.ada.gov or used for providing captioning, such as the commonly accepted term and is
ordered from the ADA Information Line on a scoreboard, on a line board, on a consistent with the terminology used by
(800–514–0301 (voice) or 800–514–0383 handheld device, or other methods. the Access Board in the 2004 ADAAG.
(TTY)). Question 49: The Department believes In addition, the proposed regulation
Video interpreting services. Section that requiring captioning of safety and updates the terminology in light of
35.160(d) has been added to establish emergency information made over the modern usage from ‘‘individuals with
performance standards for video public address system in stadiums impaired hearing or speech’’ to
interpreting services (VIS), a system the seating fewer than 25,000 has the ‘‘individuals with hearing or speech
Department recognizes as a means to potential of creating an undue burden disabilities.’’
jlentini on PROD1PC65 with PROPOSALS3
provide qualified interpreters quickly for smaller entities. However, the In § 35.161(b), the Department
and easily. (The mechanics of VIS are Department requests public comment addresses automated attendant systems
discussed above in the definition of VIS about the effect of requiring captioning that handle telephone calls
in the section-by-section analysis of of emergency announcements in all electronically. These automated systems
§ 35.104.) VIS also has economic stadiums, regardless of size. Would such are a common method for answering
advantages, is readily available, and a request be feasible for small stadiums? and directing incoming calls to public
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34499
entities. The Department has become Department prior to filing a lawsuit, and exercise discretion in selecting title II
aware that individuals with disabilities that a complainant would satisfy this complaints for resolution by deleting
who use TTYs or the requirement if no action was taken by the term ‘‘each’’ as it appears before
telecommunications relay services— the Department within sixty days. The ‘‘complaint’’ in § 35.172(a). The
primarily those who are deaf or hard of Department has considered the proposed rule at § 35.172(a) would read
hearing or who have speech-related comments that it received by a variety that, ‘‘[t]he designated agency shall
disabilities—have been unable to use of groups and has decided not to investigate complaints’’ rather than
automated telephone trees systems, propose an exhaustion requirement ‘‘investigate each complaint.’’
because they are not compatible with exclusively for prisoners in the The Department also proposes to
TTYs or a telecommunications relay regulation. change the language in § 35.171(a)(2)(i)
service. Automated attendant systems regarding misdirected complaints to
Sections 35.171, 35.172, and 35.190 make it clear that, if an agency receives
often disconnect before the individual
Streamlining Complaint Investigations a complaint for which it lacks
using one of these calling methods can
and Designated Agency Authority jurisdiction either under section 504 or
complete the communication.
In addition, the Department proposes The Department is proposing as a designated agency under the ADA,
a new § 35.161(c) that would require modifications to its current procedures the agency may refer the complaint to
that individuals using with respect to the investigation of the appropriate agency. The current
telecommunications relay services or complaints alleging discrimination on language requires the agency to refer the
TTYs be able to connect to and use the basis of disability by public entities complaint to the Department, which, in
effectively any automated attendant under title II of the ADA. Specifically, turn, refers the complaint. The proposed
system used by a public entity. The the Department is proposing several revisions to § 35.171 make it clear that
Department declined to address this amendments to its enforcement an agency can refer a misdirected
issue in the 1991 regulation because it procedures in order to streamline both complaint either directly to the
believed that it was more appropriate its internal procedures for investigating appropriate agency or to the
for the Federal Communications complaints and its procedures with Department. This amendment is
Commission (FCC) to address this in its regard to the other designated agencies intended to protect against the
rulemaking under title IV, 56 FR 35694, with enforcement responsibilities under unnecessary backlogging of complaints
35712 (July 26, 1991). Because the FCC title II. These proposals will reduce the and to prevent undue delay in an
has since raised this concern with the administrative burdens associated with agency taking action on a complaint.
Department and requested that the implementing the statute and ensure The Department is also proposing to
Department address it, it is now that the Department retains the make clear that the same procedures
appropriate to raise this issue in the title flexibility to allocate its limited that apply to complaint investigations
III regulation. enforcement resources effectively and also apply to compliance reviews that
The Department has proposed productively. are not initiated by receipt of a
§ 35.161(c), which requires that a public Subtitle A of title II of the ADA complaint, but rather are based on other
entity must respond to telephone calls defines the remedies, procedures, and information indicating that
from a telecommunications relay service rights provided for qualified individuals discrimination exists in a service,
established under title IV of the with disabilities who are discriminated program, or activity covered by this
Americans with Disabilities Act in the against on the basis of disability in the part. This provision is consistent with
same manner that it responds to other services, programs, or activities of state the Department’s procedures for
telephone calls. The Department and local governments. 42 U.S.C. enforcing title III of the ADA as well as
proposes adding this provision to 12131–12134. Subpart F of the current title VII of the Civil Rights Act of 1964,
address a series of complaints from regulation establishes administrative as amended, 42 U.S.C. 2000e et seq.,
those who use TTYs or the procedures for the enforcement of title and section 504. Section 203 of the ADA
telecommunications relay systems that II of the ADA. Subpart G identifies eight provides that those same rights,
many public entities refuse to accept ‘‘designated agencies,’’ including the remedies, and procedures shall apply to
those calls. Department, that have responsibility for title II of the ADA, 42 U.S.C. 12133. The
investigating complaints under title II. Department’s proposed rule renames
Section 35.170 Complaints—Prison The Department’s current title II § 35.172(a), ‘‘Investigations and
Litigation Reform Act regulation is based on the enforcement Compliance Reviews,’’ and provides in
In the ANPRM, the Department procedures established in regulations new paragraph (b) that ‘‘[t]he designated
proposed addressing the effect of the implementing section 504. Thus, the agency may conduct compliance
Prison Litigation Reform Act (PLRA) on Department’s current regulation reviews of public entities based on
complaints by prisoners alleging provides that the designated agency information indicating a possible failure
unlawful discrimination on the basis of ‘‘shall investigate each complete to comply with the nondiscrimination
disability under title II of the ADA. The complaint’’ alleging a violation of title II requirements of this part.’’
PLRA provides, in relevant part, that and shall ‘‘attempt informal resolution’’ Finally, the Department is proposing
‘‘[n]o action shall be brought with of such complaint. 28 CFR 35.172(a). to streamline the requirements for
respect to prison conditions under In the years since the current letters of findings. Section 35.172 of the
section 1983 of this title, or any other regulation went into effect, the Department’s current regulation requires
federal law, by a prisoner confined in Department has received many more designated agencies to investigate all
any jail, prison, or other correctional complaints alleging violations of title II complete complaints for which they are
facility until such administrative than its resources permit it to resolve. responsible as determined under
jlentini on PROD1PC65 with PROPOSALS3
remedies as are available are The Department has reviewed each § 35.171. Specifically, a designated
exhausted.’’ 42 U.S.C. 1997e(a). As a complaint that it has received and agency must issue a letter of findings at
result of this language, the Department directed its resources to resolving the the conclusion of the investigation if the
proposed requiring those prisoners most critical matters. The Department complaint was not resolved informally
alleging title II violations to file an proposes to clarify in its revised and attempt to negotiate a voluntary
administrative complaint with the regulation that designated agencies may compliance agreement if a violation was
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34500 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
found. The Department’s proposal will by the Department as a proposed rule on as a component of this rulemaking. The
clarify that letters of finding are only June 20, 1994, at 59 FR 31808. To the Department’s ANPRM, NPRM, and the
required when a violation is found. The extent that those proposals were RIA include all of the elements of the
discussion of letters of finding is moved incorporated in the 2004 ADAAG, they IRFA required by the Regulatory
to a new paragraph (c) in the proposed will all be included in the Department’s Flexibility Act (RFA). See 5 U.S.C. 601
rule, and provides the same language as proposed standards. et seq., as amended by SBREFA, 5
in the current regulation with the U.S.C. 603(b)(1)–(5), 603(c).
Regulatory Process Matters Section 603(b) lists specific
exception that the phrase ‘‘and a
violation is found’’ is added following This NPRM has been reviewed by the requirements for an IRFA regulatory
the phrase ‘‘if resolution is not Office of Management and Budget analysis. The Department has addressed
achieved.’’ (OMB) under Executive Order 12866, 58 these IRFA issues throughout the
Subpart G of the existing regulation FR 51735 (Sept. 30, 1993). The ANPRM, NPRM, and the RIA. In
deals with the various agency Department has evaluated its existing summary, the Department has satisfied
designations that the Department regulations for title II and title III section its IRFA obligations under section
proposed in promulgating the regulation by section, and many of the proposals 603(b) by providing the following:
for title II of the ADA. Current § 35.190 in its NPRMs for both titles reflect its 1. Description of the reasons that
lays out all of the agency designations. efforts to mitigate any negative effects action by the agency is being
Paragraphs 35.190(c) and (d), on small entities. The Department has considered. See, e.g., ‘‘The Roles of the
respectively, leave to the discretion of also prepared its initial regulatory Access Board and the Department of
the Attorney General decisions where impact analysis (RIA), as directed by Justice,’’ ‘‘The Revised Guidelines,’’ and
delegations are not specifically assigned Executive Order 12866 (amended ‘‘The Advance Notice of Proposed
or where there are apparent conflicts of without substantial change by E.O. Rulemaking’’ sections of the titles II and
jurisdiction. The Department’s proposed 13258, 67 FR 9385 (Feb. 26, 2002), and III NPRMs; Section 2.1, ‘‘Access Board
rule would add a new § 35.190(e) in E.O. 13422, 72 FR 2763 (Jan. 18, 2007)), Regulatory Assessment’’ of the Initial
order to deal with the situation in which and OMB Circular A–4. Regulatory Impact Analysis; see also
a complainant has sought the assistance The Department’s initial regulatory Department of Justice ADA Advanced
of the Department of Justice. The impact analysis measures the Notice of Proposed Rulemaking, 69 FR
proposed rule at § 35.190(e) provides incremental benefits and costs of the 58768, 58768–70 (Sept. 30, 2004)
that when the Department receives a proposed standards relative to the (outlining the regulatory history and
complaint alleging a violation of title II benefits and costs of the 1991 rationale underlying DOJ’s proposal to
that is directed to the Attorney General Standards. The assessment has revise its regulations implementing
that may fall within the jurisdiction of estimated the benefits and costs of all titles II and III of the ADA);
new and revised requirements as they 2. Succinct statement of the objectives
a designated agency or another federal
would apply to newly constructed of, and legal basis for, the proposed
agency that has jurisdiction under
facilities, altered facilities, and facilities rule. See, e.g., titles II and III NPRM
section 504, the Department may
that are removing barriers to access. sections entitled, ‘‘Summary,’’
exercise its discretion to retain the
A summary of the regulatory ‘‘Overview,’’ ‘‘Purpose,’’ ‘‘The ADA and
complaint for investigation under this
assessment, including the Department’s Department of Justice Regulations,’’
part. The Department would, of course,
responses to public comments ‘‘The Roles of the Access Board and the
consult with the designated agency
addressing its proposed methodology Department of Justice,’’ ‘‘Background
regarding its intention to review when
and approach, is attached as Appendix (SBREFA, Regulatory Flexibility Act,
it plans to retain the complaint. In
B to this NPRM. The complete, formal and Executive Order) Reviews,’’ and
appropriate circumstances, the ‘‘Regulatory Impact Analysis’’; App. B:
report of the initial regulatory impact
Department and the designated agency Regulatory Assessment sections
analysis is available online for public
may conduct a joint investigation. entitled, ‘‘Background,’’ ‘‘Regulatory
review on the Department’s ADA Home
Finally, the Department also proposes to Alternatives,’’ ‘‘Regulatory Proposals
Page (http://www.ada.gov) and at
amend § 35.171(a)(2)(ii) to be consistent with Cost Implications,’’ and
http://www.regulations.gov. The report
with the changes in the proposed rule ‘‘Measurement of Incremental Benefits’’;
is the work product of the Department’s
at § 35.190(e). see also 69 FR at 58768–70, 58778–79
contractor, HDR/HLB Decision
Additional Information Economics, Inc. The Department has (outlining the goals and statutory
adopted the results of this analysis as its directives for the regulations
Withdrawal of Outstanding NPRMs implementing titles II and III of the
assessment of the benefits and costs that
With the publication of this NPRM, the proposed standards will confer on ADA);
the Department is withdrawing three society. The Department invites the 3. Description of, and, where feasible,
outstanding NPRMs: The joint NPRM of public to read the full report and to an estimate of the number of small
the Department and the Access Board submit electronic comments at http:// entities to which the proposed rule will
dealing with children’s facilities, www.regulations.gov. apply. See Section 6, ‘‘Small Business
published on July 22, 1996, at 61 FR Impact Analysis’’ and App. 5, ‘‘Small
37964; the Department’s proposal to Regulatory Flexibility Act Business Data of the RIA’’ (available for
extend the time period for providing This NPRM has also been reviewed by review at http://www.ada.gov); see also
curb ramps at existing pedestrian the Small Business Administration’s App. B: Regulatory Assessment sections
walkways, published on November 27, Office of Advocacy pursuant to entitled, ‘‘Regulatory Alternatives,’’
1995, at 60 FR 58462; and the Executive Order 13272, 67 FR 53461 ‘‘Regulatory Proposals with Cost
jlentini on PROD1PC65 with PROPOSALS3
Department’s proposal to adopt the (Aug. 13, 2002). Because the proposed Implications,’’ and ‘‘Measurement of
Access Board’s accessibility guidelines rule, if adopted, may have a significant Incremental Benefits’’ (estimating the
and specifications for state and local economic impact on a substantial number of small entities the Department
government facilities, published as an number of small entities, the believes may be impacted by the
interim final rule by the Access Board Department has conducted an Initial proposed rules and calculating the
on June 20, 1994, at 59 FR 31676, and Regulatory Flexibility Analysis (IRFA) likely incremental economic impact of
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34501
these rules on small facilities/entities into account the resources available to • Adopt a regulatory alternative for
versus ‘‘typical’’ (i.e., average-sized) small entities; (2) use of performance barrier removal that, for the first time,
facilities/entities); rather than design standards; and (3) provides a specific annual monetary
4. Description of the projected any exemption from coverage of the ‘‘cost cap’’ for barrier removal
reporting, record-keeping, and other rule, or any part thereof, for such small obligations for qualified small
compliance requirements of the entities. businesses (see title III NPRM sections
proposed rule, including an estimate of The Department’s rulemaking efforts entitled, ‘‘Safe Harbor and Other
the classes of small entities that will be satisfy the IRFA requirement for Proposed Limitations on Barrier
subject to the requirement and the type consideration of significant regulatory Removal’’ and ‘‘Safe Harbor for
of professional skills necessary for alternatives. In September 2004, the Qualified Small Businesses Regarding
preparation of the report or record. See Department issued an ANPRM to What Is Readily Achievable’’);
titles II and III NPRM sections entitled, commence the process of revising its • Exempt certain existing small
‘‘Paperwork Reduction Act’’ (providing regulations implementing titles II and III recreational facilities (i.e., play areas,
that no new record-keeping or reporting of the ADA. See 69 FR 58768 (Sept. 30, swimming pools, saunas, and steam
requirements will be imposed by the 2004). Among other things, the ANPRM rooms) which, in turn, are often owned
NPRMs). The Department acknowledges sought public comment on 54 specific or operated by small entities, from
that there are other compliance questions. Prominent among these barrier removal obligations in order to
requirements in the NPRMs that may questions was the issue of whether (and comply with the standards in the
impose costs on small entities. These how) to craft a ‘‘safe harbor’’ provision proposed regulations (see title II NPRM
costs are presented in the Department’s for existing title III-covered facilities/ at § 35.150(b)(4) and (5); title III NPRM
Initial Regulatory Impact Analysis, entities that would reduce the financial section entitled, ‘‘Reduced Scoping for
Chapter 6, ‘‘Small Business Impact burden of complying with the 2004 Public Accommodations, Small
Analysis’’ and accompanying App. 5, ADAAG. See id. at 58771–72. The Facilities, and Qualified Small
‘‘Small Business Data’’ (available for ANPRM also specifically invited Businesses’’); and
review at http://www.ada.gov); comment from small entities concerning • Reduce scoping for certain other
5. Identification, to the extent the proposed rules’ potential economic existing recreational facilities (i.e., play
practicable, of all relevant federal rules impact and suggested regulatory areas over 1,000 square feet and
that may duplicate, overlap, or conflict alternatives to ameliorate such impact. swimming pools with over 300 linear
with the proposed rule. See, e.g., title II Id. at 58779 (Question 10). By the end feet of pool wall) operated by either title
NPRM sections entitled, ‘‘Analysis of of the comment period, the Department II or title III entities (see title II NPRM
Impact on Small Entities’’ (generally had received over 900 comments, at § 35.150(b)(4) and (5); title III NPRM
describing DOJ efforts to eliminate including comments from SBA’s Office section entitled, ‘‘Reduced Scoping for
duplication or overlap in federal of Advocacy and small entities. See, Public Accommodations, Small
accessibility guidelines), ‘‘The ADA and e.g., title II NPRM Preamble and title III Facilities, and Qualified Small
Department of Justice Regulations,’’ NPRM Preamble sections entitled, ‘‘The Businesses’’).
‘‘Social Service Establishments’’ Advance Notice of Proposed Taken together, the foregoing
(§ 35.151(e)), ‘‘Streamlining Complaint Rulemaking’’ (summarizing public regulatory proposals amply demonstrate
Investigations and Designated Agency response to the ANPRM). Many small that the Department was sensitive to the
Authority’’ (§§ 35.171, 35.172, and business advocates expressed concern potential economic impact of the
35.190), ‘‘Executive Order 13132: regarding the cost of making older revised regulations on small businesses
Federalism’’ (discussing interplay of existing title III-covered buildings and attempted to mitigate this impact
section 504 and ADA Standards), compliant with new regulations (since with a variety of provisions that, to the
‘‘Alterations’’ (§ 35.151(b)) (discussing many small businesses operate in such extent consistent with the ADA, impose
interplay of UFAS and ADA Standards); facilities) and urged DOJ to issue clearer reduced compliance standards on small
title III NPRM sections entitled, guidance on barrier removal. See title III entities.
‘‘Analysis of Impact on Small Entities’’ NPRM Preamble discussion of ‘‘Safe Section 610 Review. The Department
(generally describing DOJ’s harbor and other proposed limitations is also required to conduct a periodic
harmonization efforts with other federal on barrier removal.’’ regulatory review pursuant to section
accessibility guidelines), ‘‘Social Service In drafting the NPRMs for titles II and 610 of the RFA, 5 U.S.C. 601 et seq., as
Establishments’’ (§ 36.406(d)), III, the Department expressly addressed amended by the SBREFA, 5 U.S.C. 610
‘‘Definitions of Residential Facilities small businesses’ collective ANPRM et seq.
and Transient Lodging,’’ ‘‘Housing at a comments and proposed regulatory The review requires agencies to
Place of Education’’ (§ 36.406(e)) alternatives to help mitigate the consider five factors: (1) The continued
(discussing section 504), ‘‘Change economic impact of the proposed need for the rule; (2) the nature of
‘Service Animal’ to ‘Assistance regulations on small entities. For complaints or comments received
Animal,’ ’’ ‘‘Scope of Coverage’’ example, the Department’s regulatory concerning the rule from the public; (3)
(discussing Fair Housing Act), proposals: the complexity of the rule; (4) the extent
‘‘Effective Date: Time Period,’’ and • Provide a ‘‘safe harbor’’ provision to which the rule overlaps, duplicates,
‘‘Social Service Establishments’’ whereby elements in existing title II- or or conflicts with other federal rules and,
(discussing UFAS); and title III-covered buildings or facilities to the extent feasible, with state and
6. Description of any significant that are compliant with the current 1991 local governmental rules; and (5) the
alternatives to the proposed rule that Standards or UFAS need not be length of time since the rule has been
accomplish the stated objectives of modified to comply with the standards evaluated or the degree to which
jlentini on PROD1PC65 with PROPOSALS3
applicable statutes and minimize any in the proposed regulations (see ‘‘Safe technology, economic conditions, or
significant impact of the proposed rule Harbor’’ and § 35.150(b)(2) of the title II other factors have changed in the area
on small entities, including alternatives NPRM; ‘‘Safe Harbor and Other affected by the rule. See 5 U.S.C. 610(b).
considered, such as: (1) Establishment Proposed Limitations on Barrier Based on these factors, the agency is
of differing compliance or reporting Removal’’ and § 36.304 of the title III required to determine whether to
requirements or timetables that take NPRM); continue the rule without change or to
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34502 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
amend or rescind the rule, to minimize and activities, and, therefore, clearly has direct effects on state and local
any significant economic impact of the some federalism implications. State and governments, the relationship between
rule on a substantial number of small local governments have been subject to the Federal Government and the States,
entities. See id. at 610 (a). the ADA since 1991, and the majority or the distribution of power and
In developing these proposed rules, have also been required to comply with responsibilities among the various
the Department has gone through its the requirements of section 504. Hence, levels of government.
regulations section by section, and, as a the ADA and the title II regulations are
result, proposes several clarifications National Technology Transfer and
not novel for state and local
and amendments in both the title II and Advancement Act of 1995
governments. This proposed rule will
title III implementing regulations. The preempt state laws affecting entities The National Technology Transfer
proposals reflect the Department’s subject to the ADA only to the extent and Advancement Act of 1995 (NTTAA)
analysis and review of complaints or that those laws directly conflict with the directs that all federal agencies and
comments from the public as well as statutory requirements of the ADA. But departments use technical standards
changes in technology. Many of the the Department believes it is prudent to that are developed or adopted by
proposals aim to clarify and simplify the consult with public entities about the voluntary consensus standards bodies,
obligations of covered entities. As potential federalism implications of the which are private, generally non-profit
discussed in greater detail above, one proposed title II regulations. organizations that develop technical
significant goal of the development of In addition, the interaction of title II standards or specifications using well-
the 2004 ADAAG was to eliminate and title III has potentially significant defined procedures that require
duplication or overlap in federal federalism implications. Title III of the openness, balanced participation among
accessibility guidelines as well as to ADA covers public accommodations affected interests and groups, fairness
harmonize the federal guidelines with and commercial facilities. These and due process, and an opportunity for
model codes. The Department has also facilities are generally subject to appeal, as a means to carry out policy
worked to create harmony where regulation by different levels of objectives or activities. Public Law 104–
appropriate between the requirements of government, including federal, state, 113 (15 U.S.C. 272(b)). In addition, the
titles II and III. Finally, while the and local governments. The ADA and statute directs agencies to consult with
regulation is required by statute and the Department’s implementing voluntary, private sector, consensus
there is a continued need for it as a regulation set minimum civil rights standards bodies and requires that
whole, the Department proposes several protections for individuals with agencies participate with such bodies in
modifications that are intended to disabilities that in turn may affect the the development of technical standards
reduce its effects on small entities. implementation of state and local laws, when such participation is in the public
The Department has consulted with particularly building codes. For these interest and is compatible with agency
the Small Business Administration’s reasons, the Department has determined and departmental missions, authorities,
Office of Advocacy about this process. that this NPRM may have federalism priorities, and budget resources.
The Office of Advocacy has advised that implications and requires The Department, as a member of the
although the process followed by the intergovernmental consultation in Access Board, was an active participant
Department was ancillary to the compliance with Executive Order in the lengthy process of developing the
proposed adoption of revised ADA 13132. 2004 ADAAG, on which the proposed
Standards, the steps taken to solicit The Department intends to amend the standards are based. As part of this
public input and to respond to public regulation in a manner that meets the update, the Board has made its
concerns is functionally equivalent to objectives of the ADA while also guidelines more consistent with model
the process required to complete a minimizing conflicts between state law building codes, such as the International
section 610 review. Therefore, this and federal interests. To that end, as a Building Code (IBC), and industry
rulemaking fulfills the Department’s member of the Access Board, the standards. It coordinated extensively
obligations under the RFA. Department has been privy to with model code groups and standard-
substantial feedback from state and local setting bodies throughout the process so
Executive Order 13132: Federalism governments through the development that differences could be reconciled. As
Executive Order 13132, ‘‘Federalism,’’ of the 2004 ADAAG. In addition, the a result, an historic level of
64 FR 43255 (Aug. 4, 1999), requires Department solicited and received input harmonization has been achieved,
executive branch agencies to consider from public entities in the September which has brought about improvements
whether a proposed rule will have 2004 ANPRM. Some elements of the to the guidelines, as well as to
federalism implications. That is, the proposed rule reflect the Department’s counterpart provisions in the IBC and
rulemaking agency must determine work to mitigate federalism key industry standards, including those
whether the rule is likely to have implications, particularly the provisions for accessible facilities issued through
substantial direct effects on state and that streamline the administrative the American National Standards
local governments; a substantial direct process for state and local governments Institute.
effect on the relationship between the seeking ADA code certification under
federal government and the states and title III. Plain Language Instructions
localities; or a substantial direct effect The Department is now soliciting The Department makes every effort to
on the distribution of power and comments from elected state and local promote clarity and transparency in its
responsibilities among the different officials and their representative rulemaking. In any regulation, there is a
levels of government. If an agency national organizations through this tension between drafting language that
believes that a proposed rule is likely to NPRM. The Department seeks comment is simple and straightforward that also
jlentini on PROD1PC65 with PROPOSALS3
have federalism implications, it must from all interested parties, but gives full effect to issues of legal
consult with state and local elected especially state and local elected interpretation. The Department operates
officials about how to minimize or officials, about the potential federalism a toll-free ADA Information Line (800–
eliminate the effects. implications of the proposed rule. The 514–0301 (voice); 800–514–0383 (TTY))
Title II of the ADA covers state and Department will welcome comments on that the public is welcome to call during
local government programs, services, whether the proposed rule may have normal business hours to obtain
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34503
assistance in understanding anything in wheelchair in alphabetical order and Proposed standards means the
this rule. If any commenter has revising the definitions of auxiliary aids requirements set forth in appendices B
suggestions for how the regulation could and services and qualified interpreter to and D to 36 CFR part 1191 as adopted
be written more clearly, please contact read as follows: by the Department of Justice.
Janet L. Blizard, Deputy Chief, Disability * * * * *
Rights Section, whose contact § 35.104 Definitions.
Qualified interpreter means an
information is provided in the 1991 Standards means the ADA interpreter who is able to interpret
introductory section of this rule, Standards for Accessible Design, effectively, accurately, and impartially
entitled, FOR FURTHER INFORMATION codified at 28 CFR part 36, Appendix A. using any necessary specialized
CONTACT. 2004 ADAAG means the requirements vocabulary. Qualified interpreters
Paperwork Reduction Act set forth in appendices B and D to 36 include, for example, sign language
CFR part 1191. interpreters, oral interpreters, and cued
The Paperwork Reduction Act of 1980 * * * * * speech interpreters. Oral interpreter
(PRA), 44 U.S.C. 3501 et seq., requires means an interpreter who has special
Auxiliary aids and services
agencies to clear forms and record skill and training to mouth a speaker’s
keeping requirements with OMB before includes—
(1) Qualified interpreters, notetakers, words silently for individuals who are
they can be introduced. This rule does deaf or hard of hearing. Cued speech
not contain any paperwork or record computer-aided transcription services,
written materials, exchange of written interpreter means an interpreter who
keeping requirements, and does not functions in the same manner as an oral
require clearance under the PRA. notes, telephone handset amplifiers,
assistive listening devices, assistive interpreter except that he or she also
Unfunded Mandates Reform Act listening systems, telephones uses a hand code, or cue, to represent
compatible with hearing aids, closed each speech sound.
Section 4(2) of the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. caption decoders, open and closed * * * * *
1503(2), excludes from coverage under captioning, text telephones (TTYs), Qualified reader means a person who
that Act any proposed or final federal videotext displays, video interpreting is able to read effectively, accurately,
regulation that ‘‘establishes or enforces services (VIS), accessible electronic and and impartially using any necessary
any statutory rights that prohibit information technology, or other vocabulary.
discrimination on the basis of race, effective methods of making orally * * * * *
color, religion, sex, national origin, age, delivered information available to Service animal means any dog or
handicap, or disability.’’ Accordingly, individuals who are deaf or hard of other common domestic animal
this rulemaking is not subject to the hearing; individually trained to do work or
provisions of the Unfunded Mandates (2) Qualified readers, taped texts, perform tasks for the benefit of a
Reform Act. audio recordings, brailled materials and qualified individual with a disability,
displays, screen reader software, including, but not limited to, guiding
List of Subjects in 28 CFR Part 35 individuals who are blind or have low
magnification software, optical readers,
Administrative practice and secondary auditory programs (SAP), vision, alerting individuals who are deaf
procedure, Buildings and facilities, Civil large print materials, accessible or hard of hearing to the presence of
rights, Communications, Individuals electronic and information technology, people or sounds, providing minimal
with disabilities, Reporting and or other effective methods of making protection or rescue work, pulling a
recordkeeping requirements, State and visually delivered materials available to wheelchair, fetching items, assisting an
local governments. individuals who are blind or have low individual during a seizure, retrieving
By the authority vested in me as vision; medicine or the telephone, providing
Attorney General by law, including 28 physical support and assistance with
* * * * *
U.S.C. 509 and 510, 5 U.S.C. 301, and balance and stability to individuals with
Direct threat means a significant risk mobility disabilities, and assisting
section 204 of the Americans with to the health or safety of others that
Disabilities Act, Public Law 101–336, 42 individuals, including those with
cannot be eliminated by a modification cognitive disabilities, with navigation.
U.S.C. 12134, and for the reasons set of policies, practices, or procedures, or
forth in the preamble, chapter I of Title The term service animal includes
by the provision of auxiliary aids or individually trained animals that do
28 of the Code of Federal Regulations is services.
proposed to be amended as follows: work or perform tasks for the benefit of
* * * * * individuals with disabilities, including
PART 35—NONDISCRIMINATION ON Existing facility means a facility that psychiatric, cognitive, and mental
THE BASIS OF DISABILITY IN STATE has been constructed and remains in disabilities. The term service animal
AND LOCAL GOVERNMENT SERVICES existence on any given date. does not include wild animals
* * * * * (including nonhuman primates born in
1. The authority citation for 28 CFR captivity), reptiles, rabbits, farm animals
Other power-driven mobility device
part 35 continues to read as follows: (including any breed of horse, miniature
means any of a large range of devices
Authority: 5 U.S.C. 301; 28 U.S.C. 509, powered by batteries, fuel, or other horse, pony, pig, or goat), ferrets,
510; 42 U.S.C. 12134. engines—whether or not designed solely amphibians, and rodents. Animals
for use by individuals with mobility whose sole function is to provide
Subpart A—General emotional support, comfort, therapy,
impairments—that are used by
2–3. Amend § 35.104 by adding the individuals with mobility impairments companionship, therapeutic benefits, or
jlentini on PROD1PC65 with PROPOSALS3
following definitions of 1991 Standards, for the purpose of locomotion, including to promote emotional well-being are not
2004 ADAAG, direct threat, existing golf cars, bicycles, electronic personal service animals.
facility, other power-driven mobility assistance mobility devices (EPAMDs), * * * * *
device, proposed standards, service or any mobility aid designed to operate Video interpreting services (VIS)
animal, qualified reader, video in areas without defined pedestrian means an interpreting service that uses
interpreting services (VIS), and routes. video conference technology over high
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34504 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
speed Internet lines. VIS generally work or perform a task, housebroken, a fundamental alteration of the public
consists of a videophone, monitors, and under the control of its handler. A entity’s service, program, or activity.
cameras, a high speed Internet service animal shall have a harness, (c) Development of policies permitting
connection, and an interpreter. leash, or other tether. the use of other power-driven mobility
Wheelchair means a device designed (e) Care or supervision of service devices. A public entity shall establish
solely for use by an individual with a animals. A public entity is not policies to permit the use of other
mobility impairment for the primary responsible for caring for or supervising power-driven mobility devices by
purpose of locomotion in typical indoor a service animal. individuals with disabilities when it is
and outdoor pedestrian areas. A (f) Inquiries. A public entity shall not reasonable to allow an individual with
wheelchair may be manually operated ask about the nature or extent of a a disability to participate in a service,
or power-driven. person’s disability, but can determine program, or activity. Whether a
whether an animal qualifies as a service modification is reasonable to allow the
Subpart B—General Requirements animal. For example, a public entity use of a class of power-driven mobility
4. Amend § 35.133 by adding may ask: If the animal is required device by an individual with a disability
paragraph (c) to read as follows: because of a disability; and what work in specific venues (e.g., parks,
or task the animal has been trained to courthouses, office buildings, etc.) shall
§ 35.133 Maintenance of accessible perform. A public entity shall not be determined based on:
features. require documentation, such as proof (1) The dimensions, weight, and
* * * * * that the animal has been certified or operating speed of the mobility device
(c) If the proposed standards reduce licensed as a service animal. in relation to a wheelchair;
the number of required accessible (g) Access to areas open to the public, (2) The risk of potential harm to
elements below the number required by program participants, and invitees. others by the operation of the mobility
the 1991 Standards, the number of Individuals with disabilities who are device;
accessible elements in a facility subject accompanied by service animals may (3) The risk of harm to the
to this part may be reduced in access all areas of a public entity’s environment or natural or cultural
accordance with the requirements of the facility where members of the public, resources or conflict with Federal land
proposed standards. program participants and invitees are management laws and regulations; and
5. Amend 28 CFR part 35 by adding allowed to go, unless the public entity (4) The ability of the public entity to
§ 35.136 to read as follows: can demonstrate that individuals stow the mobility device when not in
accompanied by service animals would use, if requested by the user.
§ 35.136 Service animals. fundamentally alter the public entity’s (d) Inquiry into use of power-driven
(a) General. Generally, a public entity service, program, or activity. mobility device. A public entity may ask
shall modify its policies, practices, or (h) Fees or surcharges. A public entity a person using a power-driven mobility
procedures to permit the use of a service shall not ask or require an individual device if the mobility device is needed
animal by an individual with a with a disability to post a deposit, pay due to the person’s disability. A public
disability, unless the public entity can a fee or surcharge, or comply with other entity shall not ask a person using a
demonstrate that the use of a service requirements not generally applicable to mobility device questions about the
animal would fundamentally alter the other citizens as a condition of nature and extent of the person’s
public entity’s service, program, or permitting a service animal to disability.
activity. accompany its handler in a public 7. Amend 28 CFR part 35 by adding
(b) Exceptions. A public entity may entity’s facility, even if people § 35.138 to read as follows:
ask an individual with a disability to accompanied by pets are required to do
remove a service animal from the § 35.138 Ticketing.
so. If a public entity normally charges
premises if: its citizens for damage that they cause, (a) General. A public entity that sells
(1) The animal is out of control and a citizen with a disability may be tickets on a preassigned basis shall
the animal’s handler does not take charged for damage caused by his or her modify its policies, practices, or
effective action to control it; service animal. procedures to ensure that individuals
(2) The animal is not housebroken or 6. Amend 28 CFR part 35 by adding with disabilities can purchase tickets for
the animal’s presence or behavior § 35.137 to read as follows: accessible seating during the same
fundamentally alters the nature of the hours, through the same methods of
service the public entity provides; or § 35.137 Mobility devices. distribution, and in the same types and
(3) The animal poses a direct threat to (a) Use of wheelchairs, scooters, and numbers of ticketing sales outlets as
the health or safety of others that cannot manually powered mobility aids. A other patrons, unless the modification
be eliminated by reasonable public entity shall permit individuals would fundamentally alter the nature of
modifications. with mobility impairments to use the ticketing service, program, or
(c) If an animal is properly excluded. wheelchairs, scooters, walkers, crutches, activity.
If a public entity properly excludes a canes, braces, or other similar devices (b) Availability. Tickets for accessible
service animal, it shall give the designed for use by individuals with seating shall be made available during
individual with a disability the mobility impairments in any areas open all stages of ticket sales, including, but
opportunity to participate in the service, to pedestrian use. not limited to, presales, promotions,
program, or activity without having the (b) Other power-driven mobility lotteries, wait-lists, and general sales.
service animal on the premises. devices. A public entity shall make (c) Identification of accessible seating.
(d) General requirements. The work or reasonable modifications in its policies, If seating maps, plans, brochures, or
jlentini on PROD1PC65 with PROPOSALS3
tasks performed by a service animal practices, and procedures to permit the other information is provided to the
shall be directly related to the handler’s use of other power-driven mobility general public, wheelchair seating and
disability. A service animal that devices by individuals with disabilities, companion seats shall be identified.
accompanies an individual with a unless the public entity can demonstrate (d) Notification of accessible seating
disability into a facility of a public that the use of the device is not locations. A public entity that sells or
entity shall be individually trained to do reasonable or that its use will result in distributes tickets for seating at
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34505
assembly areas shall, upon inquiry, individual who utilizes a wheelchair. A (i) In addition to the provisions of
inform spectators with disabilities and public entity may investigate the section 240.2.1 of the proposed
their companions of the locations of all potential misuse of accessible seating standards, where an existing play area
unsold or otherwise available accessible where there is good cause to believe that provides elevated play components, an
seating for any ticketed event at the such seating has been purchased additional number of ground level play
facility. fraudulently. components may be substituted for the
(e) Sale of season tickets or other (i) Purchasing multiple tickets. (1) number of elevated play components
tickets for multiple events. Season Individuals with disabilities and their that would have been required to
tickets or other tickets sold on a multi- companions shall be permitted to comply with the provisions of section
event basis to individuals with purchase the same maximum number of 240.2.2 of the proposed standards; and
disabilities and their companions shall tickets for an event per sales transaction (ii) Where an existing swimming pool
be sold under the same terms and as other spectators seeking to purchase has at least 300 linear feet of swimming
conditions as other tickets sold for the seats for the same event. If there is an pool wall, it shall comply with the
same series of events. Spectators insufficient number of seats for all applicable requirements for swimming
purchasing tickets for accessible seating members of a party to sit together, seats pools, except that it shall provide at
on a multi-event basis shall also be shall be provided that are as close as least one accessible means of entry that
permitted to transfer tickets for single- possible to the wheelchair spaces. For complies with section 1009.2 or section
event use by friends or associates in the accessible seating in a designated 1009.3 of the proposed standards.
same fashion and to the same extent as wheelchair area, a public entity shall (5) Exemption for small facilities. For
permitted other spectators holding provide up to three companion seats for measures taken to comply with the
tickets for the same type of ticketing each person with a disability who program accessibility requirements of
plan. requires a wheelchair space, provided this section, existing facilities shall
(f) Hold and release of accessible that at the time of purchase there are comply with the applicable
seating. A public entity may release sufficient available wheelchair spaces. requirements for alterations in § 35.151
unsold accessible seating to any person (2) For group sales, if a group includes of this part, except as follows:
with or without a disability following one or more individuals who use a (i) Where an existing play area has
any of the circumstances described wheelchair, the group shall be placed in less than 1000 square feet, it shall be
below: a seating area that includes wheelchair exempt from the provisions of section
(1) When all seating (excluding luxury spaces so that, if possible, the group can 240 of the proposed standards;
boxes, club boxes, or suites) for an event sit together. If it is necessary to divide (ii) Where an existing swimming pool
has been sold; the group, it should be divided so that has less than 300 linear feet of
(2) When all seating in a designated the individuals in the group who use swimming pool wall, it shall be exempt
area in the facility has been sold and the wheelchairs are not isolated from their from the provisions of section 242.2 of
accessible seating being released is in group. the proposed standards; and
the same designated area; or (iii) Where an existing sauna or steam
(3) When all seating in a designated Subpart D—Program Accessibility room was designed and constructed to
price range has been sold and the seat only two people, it shall be exempt
accessible seating being sold is within 8. Amend § 35.150 as follows: from the provisions of § 241 of the
the same designated price range. a. Redesignate paragraph (b)(2) as proposed standards.
Nothing in this provision requires a paragraph (b)(3);
* * * * *
facility to release wheelchair seats for b. Add the words ‘‘or acquisition’’ 9. Revise § 35.151 to read as follows:
general sale. after the word ‘‘redesign’’ in the first
(g) Ticket prices. The price of tickets sentence of paragraph (b)(1) and add § 35.151 New construction and alterations.
for accessible seating shall not be set paragraphs (b)(2), (b)(4), and (b)(5) to (a) Design and construction. (1) Each
higher than for tickets to seating located read as follows: facility or part of a facility constructed
in the same seating section for the same by, on behalf of, or for the use of a
§ 35.150 Existing facilities.
event. Accessible seating must be made public entity shall be designed and
available at all price levels for an event. * * * * * constructed in such manner that the
If an existing facility has barriers to (b) * * * facility or part of the facility is readily
accessible seating at a particular price (2) Safe harbor. If a public entity has accessible to and usable by individuals
level for an event, then a percentage constructed or altered elements in an with disabilities, if the construction was
(determined by the ratio of the total existing facility in accordance with the commenced after January 26, 1992.
number of seats at that price level to the specifications in either the 1991 (2) Exception for structural
total number of seats in the assembly Standards or the Uniform Federal impracticability. (i) Full compliance
area) of the number of accessible seats Accessibility Standard, such public with the requirements of this section is
must be provided at that price level in entity is not, solely because of the not required where a public entity can
an accessible location. Department’s adoption of the proposed demonstrate that it is structurally
(h) Prevention of fraudulent purchase standards, required to retrofit such impracticable to meet the requirements.
of accessible seating. A public entity elements to reflect incremental changes Full compliance will be considered
may not require proof of disability in the proposed standards. structurally impracticable only in those
before selling a wheelchair space. * * * * * rare circumstances when the unique
(1) For the sale of single-event tickets, (4) Reduced scoping for existing characteristics of terrain prevent the
it is permissible to inquire whether the facilities. For measures taken to comply incorporation of accessibility features.
jlentini on PROD1PC65 with PROPOSALS3
individual purchasing the wheelchair with the program accessibility (ii) If full compliance with this
space uses a wheelchair. requirements of this section, existing section would be structurally
(2) For season tickets, subscriptions, facilities shall comply with the impracticable, compliance with this
or other multi-events, it is permissible applicable requirements for alterations section is required to the extent that it
to ask the individual to attest in writing in § 35.151 of this part, except as is not structurally impracticable. In that
that the wheelchair space is for an follows: case, any portion of the facility that can
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34506 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
be made accessible shall be made that affect the usability of or access to shall be made accessible to the extent
accessible to the extent that it is not an area containing a primary function. that it can be made accessible without
structurally impracticable. (ii) A path of travel includes a incurring disproportionate costs.
(b) Alteration. (1) Each facility or part continuous, unobstructed way of (B) In choosing which accessible
of a facility altered by, on behalf of, or pedestrian passage by means of which elements to provide, priority should be
for the use of a public entity in a the altered area may be approached, given to those elements that will
manner that affects or could affect the entered, and exited, and which connects provide the greatest access, in the
usability of the facility or part of the the altered area with an exterior following order:
facility shall, to the maximum extent approach (including sidewalks, streets, (1) An accessible entrance;
feasible, be altered in such manner that and parking areas), an entrance to the (2) An accessible route to the altered
the altered portion of the facility is facility, and other parts of the facility. area;
readily accessible to and usable by (A) An accessible path of travel may (3) At least one accessible restroom
individuals with disabilities, if the consist of walks and sidewalks, curb for each sex or a single unisex restroom;
alteration was commenced after January ramps and other interior or exterior (4) Accessible telephones;
26, 1992. pedestrian ramps; clear floor paths (5) Accessible drinking fountains; and
(2) The path of travel requirements of through lobbies, corridors, rooms, and (6) When possible, additional
§ 35.151(b)(4) shall not apply to other improved areas; parking access accessible elements such as parking,
measures taken solely to comply with aisles; elevators and lifts; or a storage, and alarms.
the program accessibility requirements combination of these elements. (v) Series of smaller alterations. (A)
of this section. (B) For the purposes of this section,
(3) Alterations to historic properties The obligation to provide an accessible
the term path of travel also includes the path of travel may not be evaded by
shall comply, to the maximum extent restrooms, telephones, and drinking
feasible, with the provisions applicable performing a series of small alterations
fountains serving the altered area. to the area served by a single path of
to historic properties in the design (C) Safe harbor. If a public entity has
standards specified in § 35.151(c). If it is travel if those alterations could have
constructed or altered required elements
not feasible to provide physical access been performed as a single undertaking.
of a path of travel in accordance with
to an historic property in a manner that (B)(1) If an area containing a primary
the specifications in either the 1991
will not threaten or destroy the historic function has been altered without
Standards or the Uniform Federal
significance of the building or facility, providing an accessible path of travel to
Accessibility Standards, the public
alternative methods of access shall be that area, and subsequent alterations of
entity is not required to retrofit such
provided pursuant to the requirements that area, or a different area on the same
elements to reflect incremental changes
of § 35.150. path of travel, are undertaken within
in the proposed standards solely
(4) Path of travel. An alteration that three years of the original alteration, the
because of an alteration to a primary
affects or could affect the usability of or total cost of alterations to the primary
function area served by that path of
access to an area of a facility that function areas on that path of travel
travel.
contains a primary function shall be (iii) Disproportionality. (A) during the preceding three-year period
made so as to ensure that, to the Alterations made to provide an shall be considered in determining
maximum extent feasible, the path of accessible path of travel to the altered whether the cost of making that path of
travel to the altered area and the area will be deemed disproportionate to travel accessible is disproportionate.
restrooms, telephones, and drinking the overall alteration when the cost (2) Only alterations undertaken after
fountains serving the altered area, are exceeds twenty percent (20%) of the the effective date of this part shall be
readily accessible to and usable by cost of the alteration to the primary considered in determining if the cost of
individuals with disabilities, including function area. providing an accessible path of travel is
individuals who use wheelchairs, (B) Costs that may be counted as disproportionate to the overall cost of
unless the cost and scope of such expenditures required to provide an the alterations.
alterations is disproportionate to the accessible path of travel may include: (c) Accessibility standards. (1) For
cost and scope of the overall alterations. (1) Costs associated with providing an facilities on which construction
(i) Primary function. A primary accessible entrance and an accessible commences before [date six months
function is a major activity for which route to the altered area, e.g., the cost of after the effective date of the final rule],
the facility is intended. Areas that widening doorways or installing ramps; design, construction, or alteration of
contain a primary function include, but (2) Costs associated with making facilities in conformance with the
are not limited to, the meeting rooms in restrooms accessible, such as installing Uniform Federal Accessibility
a conference center, as well as offices grab bars, enlarging toilet stalls, Standards (UFAS) (Appendix A to 41
and other work areas in which the insulating pipes, or installing accessible CFR part 101–19.6) or with the
activities of the public entity using the faucet controls; Americans with Disabilities Act
facility are carried out. (3) Costs associated with providing Accessibility Guidelines for Buildings
(A) Mechanical rooms, boiler rooms, accessible telephones, such as relocating and Facilities (Appendix A to the
supply storage rooms, employee lounges a telephone to an accessible height, Department of Justice’s final rule
or locker rooms, janitorial closets, installing amplification devices, or implementing title III of the ADA, 56 FR
entrances, and corridors are not areas installing a text telephone (TTY); and 35544) shall be deemed to comply with
containing a primary function. (4) Costs associated with relocating an the requirements of this section with
Restrooms are not areas containing a inaccessible drinking fountain. respect to those facilities, except that
primary function unless the provision of (iv) Duty to provide accessible the elevator exemption contained at
jlentini on PROD1PC65 with PROPOSALS3
restrooms is the principal purpose of the features in the event of section 4.1.3(5) and section 4.1.6(1)(j) of
area, e.g., in highway rest stops. disproportionality. (A) When the cost of the 1991 Standards shall not apply.
(B) For the purposes of this section, alterations necessary to make the path of Departures from particular requirements
alterations to windows, hardware, travel to the altered area fully accessible of either standard by the use of other
controls, electrical outlets, and signage is disproportionate to the cost of the methods shall be permitted when it is
shall not be deemed to be alterations overall alteration, the path of travel clearly evident that equivalent access to
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules 34507
the facility or part of the facility is (4) Stadium-style movie theaters can demonstrate that it is appropriate to
thereby provided. locate wheelchair seating spaces and make an exception for a specific
(2) Facilities on which construction companion seating on a riser or cross- individual, a public entity—
commences on or after [date six months aisle in the stadium section that satisfies (i) Should not place inmates or
after the effective date of the final rule] at least one of the following criteria: detainees with disabilities in
shall comply with the proposed (i) It is located within the rear sixty inappropriate security classifications
standards. percent (60%) of the seats provided in because no accessible cells or beds are
(d) Scope of coverage. The proposed an auditorium; or available;
standards apply to fixed or built-in (ii) It is located within the area of an (ii) Should not place inmates or
elements of buildings, structures, site auditorium in which the vertical detainees with disabilities in designated
improvements, and pedestrian routes or viewing angles (as measured to the top medical areas unless they are actually
vehicular ways located on a site. Unless of the screen) are from the 40th to the receiving medical care or treatment;
specifically stated otherwise in the text, 100th percentile of vertical viewing (iii) Should not place inmates or
advisory notes, appendix notes, and angles for all seats as ranked from the detainees with disabilities in facilities
figures contained in the ADA Standards seats in the first row (1st percentile) to that do not offer the same programs as
explain or illustrate the requirements of seats in the back row (100th percentile). the facilities where they would
the rule, they do not establish (h) Medical care facilities. Medical ordinarily be housed; and
enforceable requirements. care facilities subject to the proposed (iv) Should not deprive inmates or
(e) Social service establishments. standards shall comply with the detainees with disabilities of visitation
Group homes, halfway houses, shelters, provisions applicable to medical care with family members by placing them in
or similar social service establishments facilities, including, but not limited to, distant facilities where they would not
that provide temporary sleeping sections 223 and 805. In addition, otherwise be housed.
medical care facilities that do not (c) Alterations to detention and
accommodations or residential dwelling
specialize in the treatment of conditions correctional facilities. Alterations to
units subject to the proposed standards
that affect mobility shall disperse the jails, prisons, and other detention and
shall comply with the provisions of the
accessible patient rooms required by correctional facilities will comply with
proposed standards that apply to
section 223.2.1 in a manner that enables the requirements of § 35.151(b).
residential facilities, including, but not
patients with disabilities to have access However, when alterations are made to
limited to, the provisions in sections
to appropriate specialty services. specific cells, detention and correctional
233 and 809.
(i) Curb ramps. (1) Newly constructed facility operators may satisfy their
(1) In sleeping rooms covered by this
or altered streets, roads, and highways obligation to provide the required
section with more than twenty-five
must contain curb ramps at any number of cells with mobility features
beds, five percent (5%) minimum of the
intersection having curbs or other by providing the required mobility
beds shall have clear floor space
barriers to entry from a street level features in substitute cells (i.e., cells
complying with section 806.2.3.
pedestrian walkway. other than those where alterations are
(f) Housing at a place of education.
(2) Newly constructed or altered street originally planned), provided that each
Dormitories or residence halls operated
level pedestrian walkways must contain substitute cell—
by or on behalf of places of education (1) Is located within the same facility;
that are subject to the proposed curb ramps at intersections to streets,
roads, or highways. (2) Is integrated with other cells to the
standards shall comply with the maximum extent feasible; and
10. Amend 28 CFR part 35 by adding
provisions applicable to transient (3) Has, at a minimum, equal physical
§ 35.152 to read as follows:
lodging, including, but not limited to, access as the altered cells to areas used
the requirements for transient lodging § 35.152 Detention and correctional by inmates or detainees for visitation,
guest rooms in sections 224 and 806. facilities. dining, recreation, educational
(g) Assembly areas. Assembly areas (a) General. Public entities that are programs, medical services, work
subject to the proposed standards shall responsible for the operation or programs, religious services, and
comply with the provisions applicable management of detention and participation in other programs that the
to assembly areas, including, but not correctional facilities, either directly or facility offers to inmates or detainees.
limited to, sections 221 and 804. In through contracts or other arrangements,
addition, assembly areas shall ensure shall comply with this section. Subpart E—Communications
that— (b) Discrimination prohibited. (1) 11. Revise § 35.160 to read as follows:
(1) Wheelchair and companion Public entities shall ensure that
seating locations are dispersed among qualified inmates or detainees with § 35.160 General.
all levels of the facility that are served disabilities shall not, because that (a)(1) A public entity shall take
by an accessible route; facility is inaccessible to or unusable by appropriate steps to ensure that
(2) Wheelchair and companion individuals with disabilities, be communications with applicants,
seating locations are not located on (or excluded from participation in, or be participants, members of the public
obstructed by) temporary platforms or denied the benefits of the services, with disabilities, and companions
other movable structures. When programs, or activities of a public entity, thereof are as effective as
wheelchair seating locations are not or be subjected to discrimination by any communications with others.
required to accommodate people who public entity unless the public entity (2) For purposes of this section,
use wheelchairs, individual, readily can demonstrate that the required companion means a family member,
removable seats may be placed in those actions would result in a fundamental friend, or associate of a program
jlentini on PROD1PC65 with PROPOSALS3
spaces; alteration or undue burden. participant who, along with the
(3) Facilities that have more than (2) Public entities shall ensure that participant, is an appropriate person
5,000 seats shall provide at least five inmates or detainees with disabilities with whom the public entity should
wheelchair locations that are configured are housed in the most integrated setting communicate.
to provide at least three companion appropriate to the needs of the (b) A public entity shall furnish
seats for each wheelchair space; and individuals. Unless the public entity appropriate auxiliary aids and services
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3
34508 Federal Register / Vol. 73, No. 117 / Tuesday, June 17, 2008 / Proposed Rules
where necessary to afford individuals Americans with Disabilities Act in the § 35.190 Designated agencies.
with disabilities and their companions same manner that it responds to other * * * * *
who are individuals with disabilities, an telephone calls. (e) When the Department receives a
equal opportunity to participate in, and complaint directed to the Attorney
enjoy the benefits of, a service, program, Subpart F—Compliance Procedures General alleging a violation of this part
or activity conducted by a public entity. 13. Amend § 35.171 by revising that may fall within the jurisdiction of
(c)(1) A public entity shall not require paragraph (a)(2) to read as follows: a designated agency or another Federal
an individual with a disability to bring agency that may have jurisdiction under
another individual to interpret for him § 35.171 Acceptance of complaints. section 504, the Department may
or her. (a) * * * exercise its discretion to retain the
(2) A public entity shall not rely on (2)(i) If an agency other than the complaint for investigation under this
an individual accompanying an Department of Justice determines that it part.
individual with a disability to interpret does not have section 504 jurisdiction
Dated: May 30, 2008.
or facilitate communication, except in and is not the designated agency, it shall
an emergency involving a threat to promptly refer the complaint to either Michael B. Mukasey,
public safety or welfare, or unless the the appropriate designated agency or Attorney General.
individual with a disability specifically agency that has section 504 jurisdiction [FR Doc. E8–12622 Filed 6–16–08; 8:45 am]
requests it, the accompanying or to the Department of Justice, and so BILLING CODE 4410–13–P
individual agrees to provide the notify the complainant.
assistance, and reliance on that (ii) When the Department of Justice
individual for this assistance is receives a complaint for which it does DEPARTMENT OF JUSTICE
appropriate under the circumstances. not have jurisdiction under section 504
(d) Video interpreting services (VIS). and is not the designated agency, it may 28 CFR Part 36
A public entity that chooses to provide exercise jurisdiction pursuant to
[CRT Docket No. 106; AG Order No. 2968–
qualified interpreters via VIS shall § 35.190(e) or refer the complaint to an 2008]
ensure that it provides— agency that does have jurisdiction under
(1) High quality, clear, real-time, full- section 504 or to the appropriate agency RIN 1190–AA44
motion video and audio over a designated in subpart G of this part or,
dedicated high speed Internet in the case of an employment complaint Nondiscrimination on the Basis of
connection; that is also subject to title I of the Act, Disability by Public Accommodations
(2) A clear, sufficiently large, and to the Equal Employment Opportunity and in Commercial Facilities
sharply delineated picture of the Commission.
AGENCY: Department of Justice, Civil
interpreter’s head and the participating * * * * * Rights Division.
individual’s head, arms, hands, and 14. Revise § 35.172 to read as follows:
fingers, regardless of his body position; ACTION: Notice of proposed rulemaking.
(3) Clear transmission of voices; and § 35.172 Investigations and compliance
reviews. SUMMARY: The Department of Justice
(4) Training to nontechnicians so that
they may quickly and efficiently set up (a) The designated agency shall (Department) is issuing this notice of
and operate the VIS. investigate complaints for which it is proposed rulemaking (NPRM) in order
(e) Sports stadiums. One year after the responsible under § 35.171. to: Adopt enforceable accessibility
effective date of this regulation, sports (b) The designated agency may standards under the Americans with
stadiums that have a seating capacity of conduct compliance reviews of public Disabilities Act of 1990 (ADA) that are
25,000 or more shall provide captioning entities based on information indicating ‘‘consistent with the minimum
on the scoreboards and video monitors a possible failure to comply with the guidelines and requirements issued by
for safety and emergency information. nondiscrimination requirements of this the Architectural and Transportation
12. Revise § 35.161 to read as follows: part. Barriers Compliance Board’’ (Access
(c) Where appropriate, the designated Board); and perform periodic reviews of
§ 35.161 Telecommunications. agency shall attempt informal resolution any rule judged to have a significant
(a) Where a public entity of any matter being investigated under economic impact on a substantial
communicates by telephone with this section, and, if resolution is not number of small entities, and a
applicants and beneficiaries, text achieved and a violation is found, issue regulatory assessment of the costs and
telephones (TTYs) or equally effective to the public entity and the benefits of any significant regulatory
telecommunications systems shall be complainant, if any, a Letter of Findings action as required by the Regulatory
used to communicate with individuals that shall include— Flexibility Act, as amended by the
who are deaf or hard of hearing or have (1) Findings of fact and conclusions of Small Business Regulatory Enforcement
speech impairments. law; Fairness Act of 1996 (SBREFA).
(b) When a public entity uses an (2) A description of a remedy for each In this NPRM, the Department
automated attendant system for violation found; and proposes to adopt Parts I and III of the
receiving and directing incoming (3) Notice of the rights and procedures Americans With Disabilities Act and
telephone calls, that automated available under paragraph (d) of this Architectural Barriers Act Accessibility
attendant system must provide effective section and §§ 35.173 and 35.174. Guidelines (2004 ADAAG), which were
communication with individuals using (d) At any time, the complainant may published by the Architectural and
auxiliary aids and services, including file a private suit pursuant to § 203 of Transportation Barriers and Compliance
jlentini on PROD1PC65 with PROPOSALS3
TTYs or a telecommunications relay the Act, whether or not the designated Board (Access Board) on July 23, 2004.
system. agency finds a violation. Prior to its adoption by the Department,
(c) A public entity shall respond to the 2004 ADAAG is effective only as
Subpart G—Designated Agencies
telephone calls from a guidance to the Department; it has no
telecommunications relay service 15. Amend § 35.190 by adding legal effect on the public until the
established under title IV of the paragraph (e) to read as follows: Department issues a final rule adopting
VerDate Aug2005 17:54 Jun 16, 2008 Jkt 214001 PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 E:\FR\FM\17JNP3.SGM 17JNP3