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					                                                                                                                                         Wednesday,
                                                                                                                                         September 15, 2010




                                                                                                                                         Part II

                                                                                                                                         Department of
                                                                                                                                         Justice
                                                                                                                                         28 CFR Parts 35 and 36
                                                                                                                                         Nondiscrimination on the Basis of
                                                                                                                                         Disability in State and Local Government
                                                                                                                                         Services; Final Rules
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                                                   56164        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   DEPARTMENT OF JUSTICE                                   public, the majority of whom must be                  the rights of individuals with
                                                                                                           individuals with disabilities, and the                disabilities in employment, access to
                                                   28 CFR Parts 35                                         heads of 12 Federal departments and                   State and local government services,
                                                   [CRT Docket No. 105; AG Order No. 3180–                 agencies specified by statute, including              places of public accommodation,
                                                   2010]                                                   the heads of the Department of Justice                transportation, and other important
                                                                                                           and the Department of Transportation                  areas of American life. The ADA also
                                                   RIN 1190–AA46                                           (DOT). Originally, the Access Board was               requires newly designed and
                                                                                                           established to develop and maintain                   constructed or altered State and local
                                                   Nondiscrimination on the Basis of                       accessibility guidelines for facilities               government facilities, public
                                                   Disability in State and Local                           designed, constructed, altered, or leased             accommodations, and commercial
                                                   Government Services                                     with Federal dollars under the                        facilities to be readily accessible to and
                                                   AGENCY:  Department of Justice, Civil                   Architectural Barriers Act of 1968                    usable by individuals with disabilities.
                                                   Rights Division.                                        (ABA). 42 U.S.C. 4151 et seq. The                     42 U.S.C. 12101 et seq. Section 204(a) of
                                                   ACTION: Final rule.                                     passage of the ADA expanded the                       the ADA directs the Attorney General to
                                                                                                           Access Board’s responsibilities.                      issue regulations implementing part A
                                                   SUMMARY:    This final rule revises the                     The ADA requires the Access Board to              of title II but exempts matters within the
                                                   regulation of the Department of Justice                 ‘‘issue minimum guidelines that shall                 scope of the authority of the Secretary
                                                   (Department) that implements title II of                supplement the existing Minimum                       of Transportation under section 223,
                                                   the Americans with Disabilities Act                     Guidelines and Requirements for                       229, or 244. See 42 U.S.C. 12134.
                                                   (ADA), relating to nondiscrimination on                 Accessible Design for purposes of                     Section 229(a) and section 244 of the
                                                   the basis of disability in State and local              subchapters II and III of this chapter                ADA direct the Secretary of
                                                   government services. The Department is                  * * * to ensure that buildings,                       Transportation to issue regulations
                                                   issuing this final rule in order to adopt               facilities, rail passenger cars, and                  implementing part B of title II, except
                                                   enforceable accessibility standards                     vehicles are accessible, in terms of                  for section 223. See 42 U.S.C 12149; 42
                                                   under the ADA that are consistent with                  architecture and design, transportation,              U.S.C. 12164. Title II, which this rule
                                                   the minimum guidelines and                              and communication, to individuals with                addresses, applies to State and local
                                                   requirements issued by the                              disabilities.’’ 42 U.S.C. 12204. The ADA              government entities, and, in subtitle A,
                                                   Architectural and Transportation                        requires the Department to issue                      protects qualified individuals with
                                                   Barriers Compliance Board (Access                       regulations that include enforceable                  disabilities from discrimination on the
                                                   Board), and to update or amend certain                  accessibility standards applicable to                 basis of disability in services, programs,
                                                   provisions of the title II regulation so                facilities subject to title II or title III that      and activities provided by State and
                                                   that they comport with the Department’s                 are consistent with the ‘‘minimum                     local government entities. Title II
                                                   legal and practical experiences in                      guidelines’’ issued by the Access Board,              extends the prohibition on
                                                   enforcing the ADA since 1991.                           42 U.S.C. 12134(c); 42 U.S.C. 12186(c),               discrimination established by section
                                                   Concurrently with the publication of                    but vests in the Attorney General sole                504 of the Rehabilitation Act of 1973, as
                                                   this final rule for title II, the Department            responsibility for the promulgation of                amended, 29 U.S.C. 794, to all activities
                                                   is publishing a final rule amending its                 those standards that fall within the                  of State and local governments
                                                   ADA title III regulation, which covers                  Department’s jurisdiction and for                     regardless of whether these entities
                                                   nondiscrimination on the basis of                       enforcement of the regulations.                       receive Federal financial assistance. 42
                                                   disability by public accommodations                         The ADA also requires the                         U.S.C. 12131B65.
                                                   and in commercial facilities.                           Department to develop regulations with                   Title III prohibits discrimination on
                                                                                                           respect to existing facilities subject to             the basis of disability in the activities of
                                                   DATES: Effective Date: March 15, 2011.
                                                                                                           title II (subtitle A) and title III. How and          places of public accommodation
                                                   FOR FURTHER INFORMATION CONTACT:                        to what extent the Access Board’s                     (businesses that are generally open to
                                                   Janet L. Blizard, Deputy Chief, or                      guidelines are used with respect to the               the public and that fall into one of
                                                   Barbara J. Elkin, Attorney Advisor,                     barrier removal requirement applicable                twelve categories listed in the ADA,
                                                   Disability Rights Section, Civil Rights                 to existing facilities under title III of the         such as restaurants, movie theaters,
                                                   Division, U.S. Department of Justice, at                ADA and to the provision of program                   schools, day care facilities, recreational
                                                   (202) 307–0663 (voice or TTY). This is                  accessibility under title II of the ADA               facilities, and doctors’ offices) and
                                                   not a toll-free number. Information may                 are solely within the discretion of the               requires newly constructed or altered
                                                   also be obtained from the Department’s                  Department.                                           places of public accommodation—as
                                                   toll-free ADA Information Line at (800)                                                                       well as commercial facilities (privately
                                                   514–0301 (voice) or (800) 514–0383                      Enactment of the ADA and Issuance of
                                                                                                           the 1991 Regulations                                  owned, nonresidential facilities like
                                                   (TTY).                                                                                                        factories, warehouses, or office
                                                      This rule is also available in an                      On July 26, 1990, President George                  buildings)—to comply with the ADA
                                                   accessible format on the ADA Home                       H.W. Bush signed into law the ADA, a                  Standards. 42 U.S.C. 12181B89.
                                                   Page at http://www.ada.gov. You may                     comprehensive civil rights law                           On July 26, 1991, the Department
                                                   obtain copies of this rule in large print               prohibiting discrimination on the basis               issued rules implementing title II and
                                                   or on computer disk by calling the ADA                  of disability.1 The ADA broadly protects              title III, which are codified at 28 CFR
                                                   Information Line listed above.                                                                                part 35 (title II) and part 36 (title III).
                                                                                                             1 On September 25, 2008, President George W.
                                                   SUPPLEMENTARY INFORMATION:                                                                                    Appendix A of the 1991 title III
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                                                                                                           Bush signed into law the Americans with
                                                   The Roles of the Access Board and the                   Disabilities Amendments Act of 2008 (ADA              regulation, which is republished as
                                                   Department of Justice                                   Amendments Act), Public Law 110–325. The ADA          Appendix D to 28 CFR part 36, contains
                                                                                                           Amendments Act amended the ADA definition of          the ADA Standards for Accessible
                                                     The Access Board was established by                   disability to clarify its coverage of persons with    Design (1991 Standards), which were
                                                   section 502 of the Rehabilitation Act of                disabilities and to provide guidance on the
                                                                                                           application of the definition. This final rule does   based upon the version of the
                                                   1973. 29 U.S.C. 792. The Board consists                 not contain regulatory language implementing the
                                                   of 13 members appointed by the                          ADA Amendments Act. The Department intends to         regulatory definition of ‘‘disability’’ to implement
                                                   President from among the general                        publish a supplemental rule to amend the              the changes mandated by that law.



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                        56165

                                                   Americans with Disabilities Act                         entities with model codes to consider                 Department’s final rules become
                                                   Accessibility Guidelines (1991 ADAAG)                   amendments that would promote                         effective, the 2004 ADAAG will have
                                                   published by the Access Board on the                    further harmonization. In September of                legal effect with respect to the
                                                   same date. Under the Department’s 1991                  2002, the Access Board set forth specific             Department’s title II and title III
                                                   title III regulation, places of public                  guidelines on recreational facilities. 67             regulations and will cease to be mere
                                                   accommodation and commercial                            FR 56352 (Sept. 3, 2002).                             guidance for those areas regulated by
                                                   facilities currently are required to                       By the date of its final publication on            the Department. In 2006, the (DOT)
                                                   comply with the 1991 Standards with                     July 23, 2004, the 2004 ADA/ABA                       adopted the 2004 ADAAG. With respect
                                                   respect to newly constructed or altered                 Guidelines had been the subject of                    to those areas regulated by DOT, these
                                                   facilities. The Department’s 1991 title II              extraordinary review and public                       guidelines, as adopted by DOT have had
                                                   regulation gives public entities the                    participation. The Access Board                       legal effect since 2006.
                                                   option of complying with the Uniform                    received more than 2,500 comments
                                                                                                           from individuals with disabilities,                   The Department’s Rulemaking History
                                                   Federal Accessibility Standards (UFAS)
                                                   or the 1991 Standards with respect to                   affected industries, State and local                     The Department published an
                                                   newly constructed or altered facilities.                governments, and others. The Access                   advance notice of proposed rulemaking
                                                      The Access Board’s publication of the                Board provided further opportunity for                (ANPRM) on September 30, 2004, 69 FR
                                                   2004 ADA/ABA Guidelines was the                         participation by holding public                       58768, for two reasons: (1) To begin the
                                                   culmination of a long-term effort to                    hearings.                                             process of adopting the 2004 ADAAG by
                                                   facilitate ADA compliance by                               The Department was involved                        soliciting public input on issues relating
                                                   eliminating, to the extent possible,                    extensively in the development of the                 to the potential application of the
                                                   inconsistencies among Federal                           2004 ADA/ABA Guidelines. As a                         Access Board’s revisions once the
                                                   accessibility requirements and between                  Federal member of the Access Board,                   Department adopts them as revised
                                                   Federal accessibility requirements and                  the Attorney General’s representative                 standards; and (2) to request background
                                                   State and local building codes. In                      voted to approve the revised guidelines.              information that would assist the
                                                   support of this effort, the Department is               ADA Chapter 1 and ADA Chapter 2 of                    Department in preparing a regulatory
                                                   amending its regulation implementing                    the 2004 ADA/ABA Guidelines                           analysis under the guidance provided in
                                                   title II and is adopting standards                      provided scoping requirements for                     Office of Management and Budget
                                                   consistent with ADA Chapter 1, ADA                      facilities subject to the ADA; ‘‘scoping’’            (OMB) Circular AB4, sections D
                                                   Chapter 2, and Chapters 3 through 10 of                 is a term used in the 2004 ADA/ABA                    (Analytical Approaches) and E
                                                   the 2004 ADA/ABA Guidelines, naming                     Guidelines to describe requirements that              (Identifying and Measuring Benefits and
                                                   them the 2010 ADA Standards for                         prescribe which elements and spaces—                  Costs) (Sept. 17, 2003), available at
                                                   Accessible Design. The Department is                    and, in some cases, how many—must                     http://www.whitehouse.gov/OMB/
                                                   also amending its title III regulation,                 comply with the technical                             circulars/a004/a-4.pdf (last visited June
                                                   which prohibits discrimination on the                   specifications. ABA Chapter 1 and ABA                 24, 2010). While underscoring that the
                                                   basis of disability by public                           Chapter 2 provide scoping requirements                Department, as a member of the Access
                                                   accommodations and in commercial                        for facilities subject to the ABA (i.e.,              Board, already had reviewed comments
                                                   facilities, concurrently with the                       facilities designed, built, altered, or               provided to the Access Board during its
                                                   publication of this rule in this issue of               leased with Federal funds). Chapters 3                development of the 2004 ADAAG, the
                                                   the Federal Register.                                   through 10 provide uniform technical                  Department specifically requested
                                                                                                           specifications for facilities subject to              public comment on the potential
                                                   Development of the 2004 ADA/ABA                         either the ADA or ABA. This revised                   application of the 2004 ADAAG to
                                                   Guidelines                                              format is designed to eliminate                       existing facilities. The extent to which
                                                     In 1994, the Access Board began the                   unintended conflicts between the two                  the 2004 ADAAG is used with respect
                                                   process of updating the 1991 ADAAG by                   sets of Federal accessibility standards               to the program access requirement in
                                                   establishing an advisory committee                      and to minimize conflicts between the                 title II (as well as with respect to the
                                                   composed of members of the design and                   Federal regulations and the model codes               barrier removal requirement applicable
                                                   construction industry, the building code                that form the basis of many State and                 to existing facilities under title III) is
                                                   community, and State and local                          local building codes. For the purposes                within the sole discretion of the
                                                   government entities, as well as                         of this final rule, the Department will               Department. The ANPRM dealt with the
                                                   individuals with disabilities. In 1998,                 refer to ADA Chapter 1, ADA Chapter 2,                Department’s responsibilities under
                                                   the Access Board added specific                         and Chapters 3 through 10 of the 2004                 both title II and title III.
                                                   guidelines on State and local                           ADA/ABA Guidelines as the 2004                           The public response to the ANPRM
                                                   government facilities, 63 FR 2000 (Jan.                 ADAAG.                                                was substantial. The Department
                                                   13, 1998), and building elements                           These amendments to the 1991                       extended the comment deadline by four
                                                   designed for use by children, 63 FR                     ADAAG have not been adopted                           months at the public’s request. 70 FR
                                                   2060 (Jan. 13, 1998). In 1999, based                    previously by the Department as ADA                   2992 (Jan. 19, 2005). By the end of the
                                                   largely on the report and                               Standards. Through this rule, the                     extended comment period, the
                                                   recommendations of the advisory                         Department is adopting revised ADA                    Department had received more than 900
                                                   committee, the Access Board issued a                    Standards consistent with the 2004                    comments covering a broad range of
                                                   Notice of Proposed Rulemaking (NPRM)                    ADAAG, including all of the                           issues. Many of the commenters
                                                   to update and revise its ADA and ABA                    amendments to the 1991 ADAAG since                    responded to questions posed
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                                                   Accessibility Guidelines. See 64 FR                     1998. For the purposes of title II, the               specifically by the Department,
                                                   62248 (Nov. 16, 1999). In 2000, the                     Department’s revised standards are                    including questions regarding the
                                                   Access Board added specific guidelines                  entitled ‘‘The 2010 Standards for                     Department’s application of the 2004
                                                   on play areas. See 65 FR 62498 (Oct. 18,                Accessible Design’’ and consist of the                ADAAG once adopted by the
                                                   2000). The Access Board released an                     2004 ADAAG and the requirements in                    Department and the Department’s
                                                   interim draft of its guidelines to the                  § 35.151. Because the Department has                  regulatory assessment of the costs and
                                                   public on April 2, 2002, 67 FR 15509,                   adopted the 2004 ADAAG as part of its                 benefits of particular elements. Many
                                                   in order to provide an opportunity for                  title II and title III regulations, once the          other commenters addressed areas of


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                                                   56166        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   desired regulation or of particular                       The Department notes that this                      assistance; and other Federal statutes
                                                   concern.                                                rulemaking was unusual in that much of                such as the Air Carrier Access Act
                                                      To enhance accessibility strides made                the proposed regulatory text and many                 (ACAA), 49 U.S.C. 41705 et seq., and
                                                   since the enactment of the ADA,                         of the questions asked across titles II               the Fair Housing Act (FHAct), 42 U.S.C.
                                                   commenters asked the Department to                      and III were the same. Consequently,                  3601 et seq. Compliance with the
                                                   focus on previously unregulated areas                   many of the commenters did not                        Department’s title II and title III
                                                   such as ticketing in assembly areas;                    provide separate sets of documents for                regulations does not necessarily ensure
                                                   reservations for hotel rooms, rental cars,              the proposed title II and title III rules,            compliance with other Federal statutes.
                                                   and boat slips; and captioning. They                    and in many instances, the commenters                    Public entities that are subject to the
                                                   also asked for clarification on some                    did not specify which title was being                 ADA as well as other Federal disability
                                                   issues in the 1991 regulations, such as                 commented upon. As a result, where                    discrimination laws must be aware of
                                                   the requirements regarding service                      comments could be read to apply to                    the requirements of all applicable laws
                                                   animals. Other commenters dealt with                    both titles II and III, the Department                and must comply with these laws and
                                                   specific requirements in the 2004                       included them in the comments and                     their implementing regulations.
                                                   ADAAG or responded to questions                         responses for each final rule.                        Although in many cases similar
                                                   regarding elements scoped for the first                   Most of the commenters responded to                 provisions of different statutes are
                                                   time in the 2004 ADAAG, including                       questions posed specifically by the                   interpreted to impose similar
                                                   recreation facilities and play areas.                   Department, including what were the                   requirements, there are circumstances in
                                                   Commenters also provided some                           most appropriate definitions for terms                which similar provisions are applied
                                                   information on how to assess the cost of                such as ‘‘wheelchair,’’ ‘‘mobility device,’’
                                                                                                                                                                 differently because of the nature of the
                                                   elements in small facilities, office                    and ‘‘service animal’’; how to quantify
                                                                                                                                                                 covered entity or activity or because of
                                                   buildings, hotels and motels, assembly                  various benefits that are difficult to
                                                                                                                                                                 distinctions between the statutes. For
                                                   areas, hospitals and long-term care                     monetize; what requirements to adopt
                                                                                                                                                                 example, emotional support animals
                                                   facilities, residential units, recreation               for ticketing and assembly areas;
                                                                                                                                                                 that do not qualify as service animals
                                                   facilities, and play areas. Still other                 whether to adopt safe harbors for small
                                                                                                                                                                 under the Department’s title II
                                                   commenters addressed the effective date                 businesses; and how best to regulate
                                                                                                                                                                 regulation may nevertheless qualify as
                                                   of the proposed standards, the triggering               captioning. Some comments addressed
                                                                                                                                                                 permitted reasonable accommodations
                                                   event by which the effective date is                    specific requirements in the 2004
                                                                                                                                                                 for persons with disabilities under the
                                                   calculated for new construction, and                    ADAAG or responded to questions
                                                   variations on a safe harbor that would                  regarding elements scoped for the first               FHAct and the ACAA. See, e.g.,
                                                   excuse elements built in compliance                     time in the 2004 ADAAG, including                     Overlook Mutual Homes, Inc. v.
                                                   with the 1991 Standards from                            recreation facilities and play areas.                 Spencer, 666 F. Supp. 2d 850 (S.D. Ohio
                                                   compliance with the proposed                            Other comments responded to questions                 2009). Public entities that operate
                                                   standards.                                              posed by the Department concerning                    housing facilities must ensure that they
                                                      After careful consideration of the                   certain specific requirements in the                  apply the reasonable accommodation
                                                   public comments in response to the                      2004 ADAAG.                                           requirements of the FHAct in
                                                   ANPRM, on June 17, 2008, the                                                                                  determining whether to allow a
                                                   Department published an NPRM                            Relationship to Other Laws                            particular animal needed by a person
                                                   covering title II (73 FR 34466). The                       The Department of Justice regulation               with a disability into housing and may
                                                   Department also published an NPRM on                    implementing title II, 28 CFR 35.103,                 not use the ADA definition as a
                                                   that day covering title III (73 FR 34508).              provides the following:                               justification for reducing their FHAct
                                                   The NPRMs addressed the issues raised                      (a) Rule of interpretation. Except as              obligations. In addition, nothing in the
                                                   in the public’s comments to the ANPRM                   otherwise provided in this part, this part            ADA prevents a covered entity subject
                                                   and sought additional comment,                          shall not be construed to apply a lesser              to one statute from modifying its
                                                   generally and in specific areas, such as                standard than the standards applied                   policies and providing greater access in
                                                   the Department’s adoption of the 2004                   under title V of the Rehabilitation Act               order to assist individuals with
                                                   ADAAG, the Department’s regulatory                      of 1973 (29 U.S.C. 791) or the                        disabilities in achieving access to
                                                   assessment of the costs and benefits of                 regulations issued by Federal agencies                entities subject to other Federal statutes.
                                                   the rule, its updates and amendments of                 pursuant to that title.                               For example, a public airport is a title
                                                   certain provisions of the existing title II                (b) Other laws. This part does not                 II facility that houses air carriers subject
                                                   and III regulations, and areas that were                invalidate or limit the remedies, rights,             to the ACAA. The public airport
                                                   in need of additional clarification or                  and procedures of any other Federal,                  operator is required to comply with the
                                                   specificity.                                            State, or local laws (including State                 title II requirements, but is not covered
                                                      A public hearing was held on July 15,                common law) that provide greater or                   by the ACAA. Conversely, the air carrier
                                                   2008, in Washington, D.C. Forty-five                    equal protection for the rights of                    is required to comply with the ACAA,
                                                   individuals testified in person or by                   individuals with disabilities or                      but is not covered by title II of the ADA.
                                                   phone. The hearing was streamed live                    individuals associated with them.                     If a particular animal is a service animal
                                                   over the Internet. By the end of the 60-                   These provisions remain unchanged                  for purposes of the ACAA and is thus
                                                   day comment period, the Department                      by the final rule. The Department                     allowed on an airplane, but is not a
                                                   had received 4,435 comments                             recognizes that public entities subject to            service animal for purposes of the ADA,
                                                   addressing a broad range of issues many                 title II of the ADA may also be subject               nothing in the ADA prohibits an airport
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                                                   of which were common to the title II                    to title I of the ADA, which prohibits                from allowing a ticketed passenger with
                                                   and title III NPRMs, from                               discrimination on the basis of disability             a disability who is traveling with a
                                                   representatives of businesses and                       in employment; section 504 of the                     service animal that meets the ACAA’s
                                                   industries, State and local government                  Rehabilitation Act of 1973 and other                  definition of a service animal to bring
                                                   agencies, disability advocacy                           Federal statutes that prohibit                        that animal into the facility even though
                                                   organizations, and private individuals,                 discrimination on the basis of disability             under the ADA’s definition of service
                                                   many of which addressed issues                          in the programs and activities of                     animal the animal could be lawfully
                                                   common to both NPRMs.                                   recipients of Federal financial                       excluded.


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                        56167

                                                       In addition, public entities (including             not subject to DOT’s ADA regulation,                  discusses many of the questions asked
                                                   AMTRAK) that provide public                             but they are subject to subpart A of title            by the Department for specific public
                                                   transportation services that are subject                II and to this rule. The Department of                response. The section of Appendix A
                                                   to subtitle B of title II should be                     Justice regulation implementing title II              entitled ‘‘Other Issues’’ discusses public
                                                   reminded that the Department’s                          generally, and the DOT regulations                    comments on several issues of concern
                                                   regulation, at 28 CFR 35.102, provides:                 specifically implementing subtitle B of               to the Department that were the subject
                                                   ‘‘(a) Except as provided in paragraph (b)               title II, may overlap. If there is overlap            of questions that are not specifically
                                                   of this section, this part applies to all               in areas covered by subtitle B which                  addressed in the Section-by-Section
                                                   services, programs, and activities                      DOT regulates, these provisions shall be              Analysis.
                                                   provided or made available by public                    harmonized in accordance with the                        The Department’s description of the
                                                   entities. (b) To the extent that public                 DOT regulation at 49 CFR 37.21(c).                    2010 Standards, as well as a discussion
                                                   transportation services, programs, and                                                                        of the public comments on specific
                                                                                                           Organization of This Rule
                                                   activities of public entities are covered                                                                     sections of the 2004 ADAAG, is found
                                                   by subtitle B of title II of the ADA, 42                   Throughout this rule, the original                 in Appendix B of the final title III rule,
                                                   U.S.C. 12141 et seq., they are not subject              ADA Standards, which are republished                  ‘‘Analysis and Commentary on the 2010
                                                   to the requirements of this part.’’ The                 as Appendix D to 28 CFR part 36, will                 ADA Standards for Accessible Design,’’
                                                   ADA regulations of DOT at 49 CFR                        be referred to as the ‘‘1991 Standards.’’             and codified as Appendix B to 28 CFR
                                                   37.21(c) state that entities subject to                 The original title II regulation, 28 CFR              part 36.
                                                   DOT’s ADA regulations may also be                       part 35, will be referred to as the ‘‘1991               The provisions of this rule generally
                                                   subject to the ADA regulations of the                   title II regulation.’’ ADA Chapter 1, ADA             take effect six months from its
                                                   Department of Justice. As stated in the                 Chapter 2, and Chapters 3 through 10 of               publication in the Federal Register. The
                                                   preamble to § 37.21(c) in DOT’s 1991                    the 2004 ADA/ABA Guidelines,                          Department has determined, however,
                                                   regulation, ‘‘[t]he DOT rules apply only                codified at 36 CFR part 1191, app. B and              that compliance with the 2010
                                                   to the entity’s transportation facilities,              D (2009) will be referred to as the ‘‘2004            Standards shall not be required until 18
                                                   vehicles, or services; the DOJ rules may                ADAAG.’’ The Department’s Notice of                   months from the publication date of this
                                                   cover the entity’s activities more                      Proposed Rulemaking, 73 FR 34466                      rule. This exception is set forth in
                                                   broadly.’’ 56 FR 45584, 45736 (Sept. 6,                 (June 17, 2008), will be referred to as the           § 35.151(c) and is discussed in greater
                                                   1991). Nothing in this final rule alters                ‘‘NPRM.’’ As noted above, the 2004                    detail in Appendix A. See Appendix A
                                                   these provisions.                                       ADAAG, taken together with the                        discussion entitled ‘‘Section 35.151(c)
                                                       The Department recognizes that DOT                  requirements contained in § 35.151                    New construction and alterations.’’
                                                   has its own independent regulatory                      (New Construction and Alterations) of                    This final rule only addresses issues
                                                   responsibilities under subtitle B of title              the final rule, will be referred to as the            that were identified in the NPRM as
                                                   II of the ADA. To the extent that the                   ‘‘2010 Standards.’’ The amendments                    subjects the Department intended to
                                                   public transportation services,                         made to the 1991 title II regulation and              regulate through this rulemaking
                                                   programs, and activities of public                      the adoption of the 2004 ADAAG, taken                 proceeding. Because the Department
                                                   entities are covered by subtitle B of title             together, will be referred to as the ‘‘final          indicated in the NPRM that it did not
                                                   II of the ADA, they are subject to the                  rule.’’                                               intend to regulate certain areas,
                                                   DOT regulations at 49 CFR parts 37 and                     In performing the required periodic
                                                                                                                                                                 including equipment and furniture,
                                                   39. Matters covered by subtitle A are                   review of its existing regulation, the
                                                                                                                                                                 accessible golf cars, and movie
                                                   covered by this rule. However, this rule                Department has reviewed the title II
                                                                                                                                                                 captioning and video description, as
                                                   should not be read to prohibit DOT from                 regulation section by section, and, as a
                                                                                                                                                                 part of this rulemaking proceeding, the
                                                   elaborating on the provisions of this rule              result, has made several clarifications
                                                                                                                                                                 Department believes it would be
                                                   in its own ADA rules in the specific                    and amendments in this rule. Appendix
                                                                                                                                                                 appropriate to solicit more public
                                                   regulatory contexts for which it is                     A of the final rule, ‘‘Guidance on
                                                                                                                                                                 comment about these areas prior to
                                                   responsible, after appropriate                          Revisions to ADA Regulation on
                                                                                                                                                                 making them the subject of a
                                                   consultation with the Department. For                   Nondiscrimination on the Basis of
                                                                                                                                                                 rulemaking. The Department intends to
                                                   example, DOT may issue such specific                    Disability in State and Local
                                                                                                           Government Services,’’ codified as                    engage in additional rulemaking in the
                                                   provisions with respect to the use of                                                                         near future addressing accessibility in
                                                   non-traditional mobility devices, e.g.,                 Appendix A to 28 CFR part 35, provides
                                                                                                           the Department’s response to comments                 these areas and others, including next
                                                   Segways®, on any transportation vehicle                                                                       generation 9–1–1 and accessibility of
                                                   subject to subtitle B. While DOT may                    and its explanations of the changes to
                                                                                                           the regulation. The section entitled                  Web sites operated by covered public
                                                   establish transportation-specific                                                                             entities and public accommodations.
                                                   requirements that are more stringent or                 ‘‘Section-by-Section Analysis and
                                                   expansive than those set forth in this                  Response to Comments’’ in Appendix A                  Additional Information
                                                   rule, any such requirements cannot                      provides a detailed discussion of the
                                                                                                           changes to the title II regulation. The               Regulatory Process Matters (SBREFA,
                                                   reduce the protections and requirements
                                                                                                           Section-by-Section Analysis follows the               Regulatory Flexibility Act, and
                                                   set forth in this rule.
                                                       In addition, activities not specifically            order of the 1991 title II regulation,                Executive Orders)
                                                   addressed by DOT’s ADA regulation                       except that regulatory sections that                    The Department must provide two
                                                   may be covered by DOT’s regulation                      remain unchanged are not referenced.                  types of assessments as part of its final
                                                   implementing section 504 of the                         The discussion within each section                    rule: an analysis of the costs and
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                                                   Rehabilitation Act for its federally                    explains the changes and the reasoning                benefits of adopting the changes
                                                   assisted programs and activities at 49                  behind them, as well as the                           contained in this rule, and a periodic
                                                   CFR part 27. Like other programs of                     Department’s response to related public               review of its existing regulations to
                                                   public entities that are also recipients of             comments. Subject areas that deal with                consider their impact on small entities,
                                                   Federal financial assistance, those                     more than one section of the regulation               including small businesses, small
                                                   programs would be covered by both the                   include references to the related                     nonprofit organizations, and small
                                                   section 504 regulation and this part.                   sections, where appropriate. The                      governmental jurisdictions. See E.O.
                                                   Airports operated by public entities are                Section-by-Section Analysis also                      12866, 58 FR 51735, 3 CFR, 1994


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                                                   56168        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   Comp., p. 638, as amended; Regulatory                   and benefits but also to ‘‘distributive               2004 ADAAG will not need to modify
                                                   Flexibility Act of 1980 (RFA), 5 U.S.C.                 impacts’’ and ‘‘equity,’’ see E.O. 12866,             their code requirements once the rules
                                                   601 et seq., as amended by the Small                    section 1(a), and it is important to                  are finalized. They also assume that,
                                                   Business Regulatory Enforcement                         recognize that the ADA is intended to                 even without the final rules, the current
                                                   Fairness Act of 1996 (SBREFA), 5 U.S.C.                 provide important benefits that are                   level of compliance would be
                                                   610(a); OMB Circular A–4, available at                  distributional and equitable in                       unchanged. The Final RIA contains
                                                   http://www.whitehouse.gov/OMB/                          character. The ADA states, ‘‘[i]t is the              specific information, including data in
                                                   circulars/a004/a-4.pdf (last visited June               purpose of this [Act] (1) to provide a                chart form, detailing which States have
                                                   24, 2010); E.O. 13272, 67 FR 53461, 3                   clear and comprehensive national                      already adopted the accessibility
                                                   CFR, 2003 Comp., p. 247.                                mandate for the elimination of                        standards for this subset of six
                                                      In the NPRM, the Department kept                     discrimination against individuals with               requirements. The Department believes
                                                   open the possibility that, if warranted                 disabilities; [and] (2) to provide clear,             that the estimates resulting from this
                                                   by public comments received on an                       strong, consistent, enforceable standards             approach represent a reasonable upper
                                                   issue raised by the 2004 ADAAG, or by                   addressing discrimination against                     and lower measure of the likely effects
                                                   the results of the Department’s Initial                 individuals with disabilities[.]’’ 42                 these requirements will have that the
                                                   Regulatory Impact Analysis (available at                U.S.C. 12101(b). Many of the benefits of              Department was able to quantify and
                                                   ada.gov/NPRM2008/ria.htm) showing                       this rule stem from the provision of                  monetize.
                                                   that the likely costs of making a                       such standards, which will promote
                                                                                                                                                                    The Final RIA estimates the benefits
                                                   particular feature or facility accessible               inclusion, reduce stigma and potential
                                                                                                                                                                 and costs for all new (referred to as
                                                   were disproportionate to the benefits                   embarrassment, and combat isolation,
                                                                                                                                                                 ‘‘supplemental’’) requirements and
                                                   (including both monetized and non-                      segregation, and second-class
                                                                                                                                                                 revised requirements across all types of
                                                   monetized benefits) to persons with                     citizenship of individuals with
                                                                                                                                                                 newly constructed and existing
                                                   disabilities, the Attorney General, as a                disabilities. Some of these benefits are,
                                                                                                                                                                 facilities. The Final RIA also
                                                   member of the Access Board, could                       in the words of Executive Order 12866,
                                                                                                                                                                 incorporates a sophisticated risk
                                                   return the issue to the Access Board for                ‘‘difficult to quantify, but nevertheless
                                                                                                                                                                 analysis process that quantifies the
                                                   further consideration. After careful                    essential to consider.’’ E.O. 12866,
                                                                                                                                                                 inherent uncertainties in estimating
                                                   consideration, the Department has                       section 1(a). The Department has
                                                                                                                                                                 costs and benefits and then assesses
                                                   determined that it is unnecessary to                    considered such benefits here.
                                                                                                                                                                 (through computer simulations) the
                                                   return any issues to the Access Board                   Final Regulatory Impact Analysis                      relative impact of these factors when
                                                   for additional consideration.                                                                                 varied simultaneously. A copy of the
                                                                                                              The Final RIA embodies a
                                                   Executive Order 12866                                   comprehensive benefit-cost analysis of                Final RIA will be made available online
                                                      This rule has been reviewed by the                   the final rules for both title II and title           for public review on the Department’s
                                                   Office of Management and Budget                         III and assesses the incremental benefits             ADA Home Page (http://www.ada.gov).
                                                   (OMB) under Executive Order 12866.                      and costs of the 2010 Standards relative                 From an economic perspective (as
                                                   The Department has evaluated its                        to a primary baseline scenario (1991                  specified in OMB Circular A–4), the
                                                   existing regulations for title II and title             Standards). In addition, the Department               results of the Final RIA demonstrate that
                                                   III section by section, and many of the                 conducted additional research and                     the Department’s final rules increase
                                                   provisions in the final rule for both                   analyses for requirements having the                  social resources and thus represent a
                                                   titles reflect its efforts to mitigate any              highest negative net present values                   public good because monetized benefits
                                                   negative effects on small entities. A                   under the primary baseline scenario.                  exceed monetized costs—that is, the
                                                   Final Regulatory Impact Analysis (Final                 This approach was taken because, while                regulations have a positive net present
                                                   RIA or RIA) was prepared by the                         the 1991 Standards are the only uniform               value (NPV). Indeed, under every
                                                   Department’s contractor, HDR|HLB                        set of accessibility standards that apply             scenario assessed in the Final RIA, the
                                                   Decision Economics, Inc. (HDR). In                      to public accommodations, commercial                  final rules have a positive NPV. The
                                                   accordance with Executive Order 12866,                  facilities, and State and local                       Final RIA’s first scenario examines the
                                                   as amended, and OMB Circular A–4, the                   government facilities nationwide, it is               incremental impact of the final rules
                                                   Department has reviewed and                             also understood that many State and                   using the ‘‘main’’ set of assumptions (i.e.,
                                                   considered the Final RIA and has                        local jurisdictions have already adopted              assuming a primary baseline (1991
                                                   accepted the results of this analysis as                IBC/ANSI model code provisions that                   Standards), that the safe harbor applies,
                                                   its assessment of the benefits and costs                mirror those in the 2004 ADAAG. The                   and that for title III entities barrier
                                                   of the final rules.                                     assessments based on this approach                    removal is readily achievable for 50
                                                      Executive Order 12866 refers                         assume that covered entities currently                percent of elements subject to
                                                   explicitly not only to monetizable costs                implementing codes that mirror the                    supplemental requirements).

                                                                                                             EXPECTED IMPACT OF THE RULES 2
                                                                                                                               [In billions]

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




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


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                                                   terms of square footage) in order to                       Additional benefits of water closet                that, assuming 46 percent of covered
                                                   accommodate clearance for the in-                       clearance standards. The standards                    facilities nationwide are located in
                                                   swinging door and, thus, are already                    requiring sufficient space in single-user             jurisdictions that have adopted the
                                                   likely to have adequate clear floor space               toilet rooms for a wheelchair user to                 relevant equivalent IBC/ANSI model
                                                   for persons with disabilities who use                   effect a side or parallel transfer are                code provisions, the costs of the
                                                   other types of mobility aids such as                    among the most costly (in monetary                    requirement as applied to toilet rooms
                                                   walkers and crutches.                                   terms) of the new provisions in the                   with out-swinging doors will exceed the
                                                      The expert benefits panel estimated                  Access Board’s guidelines that the                    monetized benefits by $454 million, an
                                                   that single-user toilet rooms with in-                  Department adopts in this rule—but                    annualized net cost of approximately
                                                   swinging doors are used less frequently                 also, the Department believes, one of the             $32.6 million. But a large number of
                                                   on average—about once every 20 visits                   most beneficial in non-monetary terms.                people with disabilities will realize
                                                   to a facility with such a toilet room by                Although the monetized costs of these                 benefits of independence, safety, and
                                                   a person who uses a wheelchair—than                     requirements substantially exceed the                 avoided stigma and humiliation as a
                                                   their counterpart toilet rooms with out-                monetized benefits, the additional                    result of the requirement’s application
                                                   swinging doors. This panel also                         benefits that persons with disabilities               in this context. Based on the estimates
                                                   determined that, on average, each user                  will derive from greater safety,                      of its expert panel and its own
                                                   would realize a time savings of about 9                 enhanced independence, and the                        experience, the Department believes
                                                   minutes as a result of the enhanced                     avoidance of stigma and humiliation—                  that both wheelchair users and people
                                                   clearances required by this revised                     benefits that the Department’s economic               with a variety of other mobility
                                                   standard.                                               model could not put in monetary                       disabilities will benefit. The Department
                                                      The RIA estimates that there are about               terms—are, in the Department’s                        estimates that people with the relevant
                                                   4 million single-user toilet rooms with                 experience and considered judgment,                   disabilities will use a newly accessible
                                                   in-swinging doors in existing facilities.               likely to be quite high. Wheelchair                   single-user toilet room with an out-
                                                   About half of the single-user toilet                    users, including veterans returning from              swinging door approximately 677
                                                   rooms with in-swinging doors are                        our Nation’s wars with disabilities, are              million times per year. Dividing the
                                                   assumed to be located in single-level                   taught to transfer onto toilets from the              $32.6 million annual cost by the 677
                                                   stores, and about a quarter of them are                 side. Side transfers are the safest, most             million annual uses, the Department
                                                   assumed to be located in restaurants.                   efficient, and most independence-                     concludes that for the costs and benefits
                                                   Based on construction industry data, it                 promoting way for wheelchair users to                 to break even in this context, people
                                                   was estimated that approximately 3                      get onto the toilet. The opportunity to               with the relevant disabilities will have
                                                   percent of existing single-user toilet                  effect a side transfer will often obviate             to value safety, independence, and the
                                                   rooms with in-swinging doors would be                   the need for a wheelchair user or                     avoidance of stigma and humiliation at
                                                   altered each year, and that the number                  individual with another type of mobility              just under 5 cents per visit. The
                                                   of newly constructed facilities with                    impairment to obtain the assistance of                Department believes, based on its
                                                   these types of toilet rooms would                       another person to engage in what is, for              experience and informed judgment, that
                                                   increase at the rate of about 1 percent                 most people, among the most private of                5 cents substantially understates the
                                                   each year. However, due to the                          activities. Executive Order 12866 refers              value people with the relevant
                                                   widespread adoption at the State and                    explicitly not only to monetizable costs              disabilities would place on these
                                                   local level of model code provisions that               and benefits but also to ‘‘distributive               benefits in this context.
                                                   mirror Req. #32, it is further understood               impacts’’ and ‘‘equity,’’ see E.O. 12866,                There are substantially fewer single-
                                                   that slightly more than 70 percent of all               section 1(a), and it is important to                  user toilet rooms with in-swinging
                                                   existing facilities assumed to have                     recognize that the ADA is intended to                 doors, and substantially fewer people
                                                   single-user toilet rooms with in-                       provide important benefits that are                   with disabilities will benefit from
                                                   swinging doors already are covered by                   distributional and equitable in                       making those rooms accessible. While
                                                   State or local building codes that require              character. These water closet clearance               both wheelchair users and individuals
                                                   equivalent water closet clearances. Due                 provisions will have non-monetized                    with other ambulatory disabilities will
                                                   to the general element-by-element safe                  benefits that promote equal access and                benefit from the additional space in a
                                                   harbor provision in the final rules, no                 equal opportunity for individuals with                room with an out-swinging door, the
                                                   unaltered single-user toilet rooms that                 disabilities, and will further the ADA’s              Department believes, based on the
                                                   comply with the current 1991 Standards                  purpose of providing ‘‘a clear and                    estimates of its expert panel and its own
                                                   will be required to retrofit to meet the                comprehensive national mandate for the                experience, that wheelchair users likely
                                                   revised clearance requirements in the                   elimination of discrimination against                 will be the primary beneficiaries of the
                                                   final rules.                                            individuals with disabilities.’’ 42 U.S.C.            in-swinging door requirement. The
                                                      Similar to the assumptions for Req.                  12101(b)(1).                                          Department estimates that people with
                                                   #28, it is assumed that newly                              The Department’s calculations                      the relevant disabilities will use a newly
                                                   constructed single-user toilet rooms                    indicated that, in fact, people with the              accessible single-user toilet room with
                                                   with in-swinging doors will last the life               relevant disabilities would have to place             an in-swinging door approximately 8.7
                                                   of the building, about 40 years. For                    only a very small monetary value on                   million times per year. Moreover, the
                                                   alterations, the amount of time such a                  these quite substantial benefits for the              alteration costs to make a single-user
                                                   toilet room will be used depends upon                   costs and benefits of these water closet              toilet room with an in-swinging door
WReier-Aviles on DSKGBLS3C1PROD with RULES2




                                                   the remaining life of the building (i.e.,               clearance standards to break even. To                 accessible are substantially higher
                                                   a period of time between 1 and 39                       make these calculations, the Department               (because of the space taken up by the
                                                   years). Over this time period, the total                separated out toilet rooms with out-                  door) than the equivalent costs of
                                                   estimated value of benefits to users of                 swinging doors from those with in-                    making a room with an out-swinging
                                                   water closets with in-swinging doors                    swinging doors, because the costs and                 door accessible. Thus, the Department
                                                   from the time they will save and                        benefits of the respective water closet               calculates that, assuming 72 percent of
                                                   decreased discomfort they will                          clearance requirements are significantly              covered facilities nationwide are located
                                                   experience is nearly $12 million.                       different. The Department estimates                   in jurisdictions that have adopted the


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                         56171

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


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


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                                                   regulations for accessible holes without                Standards, the steps taken to solicit                 Department to make a regulatory
                                                   significantly degrading the experience                  public input and to respond to public                 assessment of the costs and benefits of
                                                   for other users. Finally, with respect to               concerns are functionally equivalent to               any significant regulatory action. See
                                                   costs to individuals who do not have                    the process required to complete a                    preamble sections of the final rules for
                                                   disabilities, a very tall person, for                   section 610 review. Therefore, this                   titles II and III entitled, ‘‘Summary’’ and
                                                   example, may be inconvenienced by                       rulemaking fulfills the Department’s                  ‘‘The Department’s Rulemaking
                                                   having to reach further for a lowered                   obligations under section 610 of the                  History’’; Department of Justice ANPRM,
                                                   light switch.                                           RFA.                                                  69 FR 58768, 58768–70 (Sept. 30, 2004)
                                                                                                                                                                 (outlining the regulatory history, goals,
                                                   Section 610 Review                                      Final Regulatory Flexibility Analysis
                                                                                                                                                                 and rationale underlying DOJ’s proposal
                                                      The Department is also required to                      The final rule also has been reviewed              to revise its regulations implementing
                                                   conduct a periodic regulatory review                    by the Small Business Administration’s                titles II and III of the ADA); Department
                                                   pursuant to section 610 of the RFA. The                 Office of Advocacy (Advocacy) in                      of Justice NPRM, 73 FR 34508, 34508–
                                                   review requires agencies to consider five               accordance with Executive Order 13272,                14 (June 17, 2008) (outlining the
                                                   factors: (1) The continued need for the                 67 FR 53461, 3 CFR, 2003 Comp., p.                    regulatory history and rationale
                                                   rule; (2) the nature of complaints or                   247. Chapter Seven of the Final RIA                   underlying DOJ’s proposal to revise its
                                                   comments received concerning the rule                   demonstrates that the final rule will not             regulations implementing titles II and III
                                                   from the public; (3) the complexity of                  have a significant economic impact on                 of the ADA).
                                                   the rule; (4) the extent to which the rule              a substantial number of small                            2. Summaries of significant issues
                                                   overlaps, duplicates, or conflicts with                 governmental jurisdictions or facilities.             raised by public comments in response
                                                   other Federal rules, and, to the extent                 The Department has also conducted a                   to the Department’s initial regulatory
                                                   feasible, with State and local                          final regulatory flexibility analysis                 flexibility analysis (IRFA) and
                                                   governmental rules; and (5) the length of               (FRFA) as a component of this                         discussions of regulatory revisions made
                                                   time since the rule has been evaluated                  rulemaking. Collectively, the ANPRM,                  as a result of such comments. The
                                                   or the degree to which technology,                      NPRM, Initial RIA, Final RIA, and 2010                Department received no comments
                                                   economic conditions, or other factors                   Standards, include all of the elements of             addressing specific substantive issues
                                                   have changed in the area affected by the                a FRFA required by the Regulatory                     regarding the IRFA for the title II NPRM.
                                                   rule. See 5 U.S.C. 610(b). Based on these               Flexibility Act (RFA). See 5 U.S.C.                   However, the Office of Advocacy
                                                   factors, the agency is required to                      604(a)(1)–(5).                                        (Advocacy) of the U.S. Small Business
                                                   determine whether to continue the rule                     Section 604(a) lists the specific                  Administration did provide specific
                                                   without change or to amend or rescind                   requirements for a FRFA. The                          comments on the title III NPRM, which
                                                   the rule, to minimize any significant                   Department has addressed these RFA                    may be relevant to the title II IRFA.
                                                   economic impact of the rule on a                        requirements throughout the ANPRM,                    Accordingly, the Department has
                                                   substantial number of small entities. See               NPRM, the 2010 Standards, and the                     included those comments here.
                                                   id. 610(a).                                             RIA. In summary, the Department has                      Advocacy acknowledged how the
                                                      In developing the 2010 Standards, the                satisfied its FRFA obligations under                  Department took into account the
                                                   Department reviewed the 1991                            section 604(a) by providing the                       comments and concerns of small
                                                   Standards section by section and, as a                  following:                                            entities. However, Advocacy remained
                                                   result, has made several clarifications                    1. Succinct summaries of the need for,             concerned about certain items in the
                                                   and amendments in both the title II and                 and objectives of, the final rules. The               Department’s NPRM and requested
                                                   title III implementing regulations. The                 Department is issuing this final rule in              clarification or additional guidance on
                                                   changes reflect the Department’s                        order to comply with its obligations                  certain items.
                                                   analysis and review of complaints or                    under both the ADA and the SBREFA.                       General Safe Harbor. Advocacy
                                                   comments from the public, as well as                    The Department is also updating or                    expressed support for the Department’s
                                                   changes in technology. Many of the                      amending certain provisions of the                    proposal to allow an element-by-
                                                   amendments aim to clarify and simplify                  existing title II regulations so that they            element safe harbor for elements that
                                                   the obligations of covered entities. As                 are consistent with the title III                     now comply with the 1991 ADA
                                                   discussed in greater detail above, one                  regulations and accord with the                       Standards and encouraged the
                                                   significant goal of the development of                  Department’s legal and practical                      Department to include specific technical
                                                   the 2004 ADAAG was to eliminate                         experiences in enforcing the ADA.                     assistance in the Small Business
                                                   duplication or overlap in Federal                          The ADA requires the Department to                 Compliance Guide that the Department
                                                   accessibility guidelines, as well as to                 adopt enforceable accessibility                       is required to publish pursuant to
                                                   harmonize the Federal guidelines with                   standards under the ADA that are                      section 212 of the SBREFA. Advocacy
                                                   model codes. The Department has also                    consistent with the Access Board’s                    requested that technical assistance
                                                   worked to create harmony where                          minimum accessibility guidelines and                  outlining which standards are subject to
                                                   appropriate between the requirements of                 requirements. Accordingly, this rule                  the safe harbor be included in the
                                                   titles II and III. Finally, while the                   adopts ADA Chapter 1, ADA Chapter 2,                  Department’s guidance. The Department
                                                   regulation is required by statute and                   and Chapters 3 through 10 of the 2004                 has provided a list of the new
                                                   there is a continued need for it as a                   ADA/ABA Guidelines as part of the                     requirements in the 2010 Standards that
                                                   whole, the Department proposes several                  2010 Standards, which will give the                   are not eligible for the safe harbor in
                                                   modifications that are intended to                      guidelines legal effect with respect to               § 35.150(b)(2)(ii)(A) through
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                                                   reduce its effects on small entities.                   the Department’s title II and title III               § 35.150(b)(2)(ii)(L) of the final rule and
                                                      The Department has consulted with                    regulations.                                          plans to include additional information
                                                   the Small Business Administration’s                        Under the SBREFA, the Department is                about the application of the safe harbor
                                                   Office of Advocacy about this process.                  required to perform a periodic review of              in the Department’s Small Business
                                                   The Office of Advocacy has advised that                 its 1991 rule because the rule may have               Compliance Guide. Advocacy also
                                                   although the process followed by the                    a significant economic impact on a                    requested that guidance regarding the
                                                   Department was ancillary to the                         substantial number of small entities.                 two effective dates for regulations also
                                                   proposed adoption of revised ADA                        The SBREFA also requires the                          be provided and the Department plans


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


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


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                                                   56176        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   business compliance guide, as well as to                   The Department also solicited and                  interest and is compatible with agency
                                                   publish technical assistance materials of               received input from public entities in                and departmental missions, authorities,
                                                   general interest to all covered entities                the September 2004 ANPRM and the                      priorities, and budget resources. Id. at
                                                   following promulgation of the final rule.               June 2008 NPRM. Through the ANPRM                     section 12(d)(1). The Department, as a
                                                   Additionally, the Access Board has                      and NPRM processes, the Department                    member of the Access Board, was an
                                                   published a number of guides that                       solicited comments from elected State                 active participant in the lengthy process
                                                   discuss and illustrate application of the               and local officials and their                         of developing the 2004 ADAAG, on
                                                   2010 Standards to play areas and                        representative national organizations                 which the 2010 Standards are based. As
                                                   various types of recreational facilities.               about the potential federalism                        part of this update, the Board has made
                                                                                                           implications. The Department received                 its guidelines more consistent with
                                                   Executive Order 13132                                   comments addressing whether the                       model building codes, such as the IBC,
                                                      Executive Order 13132, 64 FR 43255,                  ANPRM and NPRM directly affected                      and industry standards. It coordinated
                                                   3 CFR, 2000 Comp., p. 206, requires                     State and local governments, the                      extensively with model code groups and
                                                   executive branch agencies to consider                   relationship between the Federal                      standard-setting bodies throughout the
                                                   whether a rule will have federalism                     Government and the States, and the                    process so that differences could be
                                                   implications. That is, the rulemaking                   distribution of power and                             reconciled. As a result, a historic level
                                                   agency must determine whether the rule                  responsibilities among the various                    of harmonization has been achieved that
                                                   is likely to have substantial direct                    levels of government. This rule                       has brought about improvements to the
                                                   effects on State and local governments,                 preempts State laws affecting entities                guidelines, as well as to counterpart
                                                   a substantial direct effect on the                      subject to the ADA only to the extent                 provisions in the IBC and key industry
                                                   relationship between the Federal                        that those laws conflict with the                     standards, including those for accessible
                                                   Government and the States and                           requirements of the ADA, as set forth in              facilities issued through the American
                                                   localities, or a substantial direct effect              the rule.                                             National Standards Institute.
                                                   on the distribution of power and                           Title III of the ADA covers public
                                                                                                           accommodations and commercial                         Plain Language Instructions
                                                   responsibilities among the different
                                                   levels of government. If an agency                      facilities. These facilities are generally               The Department makes every effort to
                                                   believes that a rule is likely to have                  subject to regulation by different levels             promote clarity and transparency in its
                                                   federalism implications, it must consult                of government, including Federal, State,              rulemaking. In any regulation, there is a
                                                   with State and local elected officials                  and local governments. The ADA and                    tension between drafting language that
                                                   about how to minimize or eliminate the                  the Department’s implementing                         is simple and straightforward and
                                                   effects.                                                regulations set minimum civil rights                  drafting language that gives full effect to
                                                                                                           protections for individuals with                      issues of legal interpretation. The
                                                      Title II of the ADA covers State and
                                                                                                           disabilities that in turn may affect the              Department operates a toll-free ADA
                                                   local government programs, services,
                                                                                                           implementation of State and local laws,               Information Line (800) 514–0301
                                                   and activities and, therefore, clearly has
                                                                                                           particularly building codes. The                      (voice); (800) 514–0383 (TTY) that the
                                                   some federalism implications. State and
                                                                                                           Department’s implementing regulations                 public is welcome to call at any time to
                                                   local governments have been subject to
                                                                                                           address federalism concerns and                       obtain assistance in understanding
                                                   the ADA since 1991, and the majority
                                                                                                           mitigate federalism implications,                     anything in this rule. If any commenter
                                                   have also been required to comply with                  particularly the provisions that                      has suggestions for how the regulation
                                                   the requirements of section 504. Hence,                 streamline the administrative process                 could be written more clearly, please
                                                   the ADA and the title II regulation are                 for State and local governments seeking               contact Janet L. Blizard, Deputy Chief or
                                                   not novel for State and local                           ADA code certification under title III.               Barbara J. Elkin, Attorney Advisor,
                                                   governments. In its adoption of the 2010
                                                                                                           National Technology Transfer and                      Disability Rights Section, whose contact
                                                   Standards, the Department was mindful
                                                                                                           Advancement Act of 1995                               information is provided in the
                                                   of its obligation to meet the objectives
                                                                                                                                                                 introductory section of this rule,
                                                   of the ADA while also minimizing                           The National Technology Transfer                   entitled, ‘‘FOR FURTHER INFORMATION
                                                   conflicts between State law and Federal                 and Advancement Act of 1995 (NTTAA)                   CONTACT.’’
                                                   interests.                                              directs that as a general matter, all
                                                      The 2010 Standards address and                       Federal agencies and departments shall                Paperwork Reduction Act
                                                   minimize federalism concerns. As a                      use technical standards that are                        The Paperwork Reduction Act of 1980
                                                   member of the Access Board, the                         developed or adopted by voluntary                     (PRA) requires agencies to clear forms
                                                   Department was privy to substantial                     consensus standards bodies, which are                 and record keeping requirements with
                                                   feedback from State and local                           private, generally non-profit                         OMB before they can be introduced. 44
                                                   governments throughout the                              organizations that develop technical                  U.S.C. 3501 et seq. This rule does not
                                                   development of the Board’s 2004                         standards or specifications using well-               contain any paperwork or record
                                                   guidelines. Before those guidelines were                defined procedures that require                       keeping requirements and does not
                                                   finalized as the 2004 ADA/ABA                           openness, balanced participation among                require clearance under the PRA.
                                                   Guidelines, they addressed and                          affected interests and groups, fairness
                                                   minimized federalism concerns                           and due process, and an opportunity for               Unfunded Mandates Reform Act
                                                   expressed by State and local                            appeal, as a means to carry out policy                  Section 4(2) of the Unfunded
                                                   governments during the development                      objectives or activities. Public Law 104–             Mandates Reform Act of 1995, 2 U.S.C.
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                                                   process. Because the Department                         113, section 12(d)(1) (15 U.S.C. 272                  1503(2), excludes from coverage under
                                                   adopted ADA Chapter 1, ADA Chapter                      note). In addition, the NTTAA directs                 that Act any proposed or final Federal
                                                   2, and Chapters 3 through 10 of the 2004                agencies to consult with voluntary,                   regulation that ‘‘establishes or enforces
                                                   ADA/ABA Guidelines as part of the                       private sector, consensus standards                   any statutory rights that prohibit
                                                   2010 Standards, the steps taken in the                  bodies and requires that agencies                     discrimination on the basis of race,
                                                   2004 ADA/ABA Guidelines to address                      participate with such bodies in the                   color, religion, sex, national origin, age,
                                                   federalism concerns are reflected in the                development of technical standards                    handicap, or disability.’’ Accordingly,
                                                   2010 Standards.                                         when such participation is in the public              this rulemaking is not subject to the


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                        56177

                                                   provisions of the Unfunded Mandates                     captioning, including real-time                       508(c)(2) of the ADA, 42 U.S.C.
                                                   Reform Act.                                             captioning; voice, text, and video-based              12207(c)(2).
                                                                                                           telecommunications products and                       *     *      *    *     *
                                                   List of Subjects for 28 CFR Part 35
                                                                                                           systems, including text telephones                       Qualified interpreter means an
                                                      Administrative practice and                          (TTYs), videophones, and captioned                    interpreter who, via a video remote
                                                   procedure, Buildings and facilities, Civil              telephones, or equally effective                      interpreting (VRI) service or an on-site
                                                   rights, Communications, Individuals                     telecommunications devices; videotext                 appearance, is able to interpret
                                                   with disabilities, Reporting and                        displays; accessible electronic and                   effectively, accurately, and impartially,
                                                   recordkeeping requirements, State and                   information technology; or other                      both receptively and expressively, using
                                                   local governments.                                      effective methods of making aurally                   any necessary specialized vocabulary.
                                                   ■ By the authority vested in me as                      delivered information available to                    Qualified interpreters include, for
                                                   Attorney General by law, including 28                   individuals who are deaf or hard of                   example, sign language interpreters, oral
                                                   U.S.C. 509 and 510, 5 U.S.C. 301, and                   hearing;                                              transliterators, and cued-language
                                                   section 204 of the Americans with                          (2) Qualified readers; taped texts;                transliterators.
                                                   Disabilities Act of 1990, Pub. L. 101–                  audio recordings; Brailled materials and              *     *      *    *     *
                                                   336, 42 U.S.C. 12134, and for the                       displays; screen reader software;                        Qualified reader means a person who
                                                   reasons set forth in Appendix A to 28                   magnification software; optical readers;              is able to read effectively, accurately,
                                                   CFR part 35, chapter I of title 28 of the               secondary auditory programs (SAP);                    and impartially using any necessary
                                                   Code of Federal Regulations shall be                    large print materials; accessible                     specialized vocabulary.
                                                   amended as follows—                                     electronic and information technology;                *     *      *    *     *
                                                   PART 35—NONDISCRIMINATION ON                            or other effective methods of making                     Service animal means any dog that is
                                                   THE BASIS OF DISABILITY IN STATE                        visually delivered materials available to             individually trained to do work or
                                                   AND LOCAL GOVERNMENT SERVICES                           individuals who are blind or have low                 perform tasks for the benefit of an
                                                                                                           vision;                                               individual with a disability, including a
                                                   ■ 1. The authority citation for 28 CFR                     (3) Acquisition or modification of                 physical, sensory, psychiatric,
                                                   part 35 is revised to read as follows:                  equipment or devices; and                             intellectual, or other mental disability.
                                                     Authority: 5 U.S.C. 301; 28 U.S.C. 509,                                                                     Other species of animals, whether wild
                                                                                                              (4) Other similar services and actions.
                                                   510; 42 U.S.C. 12134.                                                                                         or domestic, trained or untrained, are
                                                                                                           *      *    *      *    *                             not service animals for the purposes of
                                                   Subpart A—General                                          Direct threat means a significant risk             this definition. The work or tasks
                                                                                                           to the health or safety of others that                performed by a service animal must be
                                                   ■ 2. Amend § 35.104 by adding the                       cannot be eliminated by a modification                directly related to the handler’s
                                                   following definitions of 1991 Standards,                of policies, practices or procedures, or              disability. Examples of work or tasks
                                                   2004 ADAAG, 2010 Standards, direct                      by the provision of auxiliary aids or                 include, but are not limited to, assisting
                                                   threat, existing facility, housing at a                 services as provided in § 35.139.                     individuals who are blind or have low
                                                   place of education, other power-driven                                                                        vision with navigation and other tasks,
                                                                                                           *      *    *      *    *
                                                   mobility device, service animal,                                                                              alerting individuals who are deaf or
                                                   qualified reader, video remote                             Existing facility means a facility in
                                                                                                           existence on any given date, without                  hard of hearing to the presence of
                                                   interpreting (VRI) service, and                                                                               people or sounds, providing non-violent
                                                   wheelchair in alphabetical order and                    regard to whether the facility may also
                                                                                                           be considered newly constructed or                    protection or rescue work, pulling a
                                                   revising the definitions of auxiliary aids                                                                    wheelchair, assisting an individual
                                                   and services and qualified interpreter to               altered under this part.
                                                                                                                                                                 during a seizure, alerting individuals to
                                                   read as follows:                                        *      *    *      *    *                             the presence of allergens, retrieving
                                                                                                              Housing at a place of education                    items such as medicine or the
                                                   § 35.104   Definitions.
                                                                                                           means housing operated by or on behalf                telephone, providing physical support
                                                      1991 Standards means the                             of an elementary, secondary,
                                                   requirements set forth in the ADA                                                                             and assistance with balance and
                                                                                                           undergraduate, or postgraduate school,                stability to individuals with mobility
                                                   Standards for Accessible Design,                        or other place of education, including
                                                   originally published on July 26, 1991,                                                                        disabilities, and helping persons with
                                                                                                           dormitories, suites, apartments, or other             psychiatric and neurological disabilities
                                                   and republished as Appendix D to 28                     places of residence.
                                                   CFR part 36.                                                                                                  by preventing or interrupting impulsive
                                                      2004 ADAAG means the requirements                    *      *    *      *    *                             or destructive behaviors. The crime
                                                   set forth in appendices B and D to 36                      Other power-driven mobility device                 deterrent effects of an animal’s presence
                                                   CFR part 1191 (2009).                                   means any mobility device powered by                  and the provision of emotional support,
                                                      2010 Standards means the 2010 ADA                    batteries, fuel, or other engines—                    well-being, comfort, or companionship
                                                   Standards for Accessible Design, which                  whether or not designed primarily for                 do not constitute work or tasks for the
                                                   consist of the 2004 ADAAG and the                       use by individuals with mobility                      purposes of this definition.
                                                   requirements contained in § 35.151.                     disabilities—that is used by individuals              *     *      *    *     *
                                                      Auxiliary aids and services                          with mobility disabilities for the                       Video remote interpreting (VRI)
                                                   includes—(1) Qualified interpreters on-                 purpose of locomotion, including golf                 service means an interpreting service
                                                   site or through video remote                            cars, electronic personal assistance                  that uses video conference technology
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                                                   interpreting (VRI) services; notetakers;                mobility devices (EPAMDs), such as the                over dedicated lines or wireless
                                                   real-time computer-aided transcription                  Segway® PT, or any mobility device                    technology offering high-speed, wide-
                                                   services; written materials; exchange of                designed to operate in areas without                  bandwidth video connection that
                                                   written notes; telephone handset                        defined pedestrian routes, but that is not            delivers high-quality video images as
                                                   amplifiers; assistive listening devices;                a wheelchair within the meaning of this               provided in § 35.160(d).
                                                   assistive listening systems; telephones                 section. This definition does not apply               *     *      *    *     *
                                                   compatible with hearing aids; closed                    to Federal wilderness areas; wheelchairs                 Wheelchair means a manually-
                                                   caption decoders; open and closed                       in such areas are defined in section                  operated or power-driven device


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                                                   56178        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   designed primarily for use by an                        control of its handler. A service animal                (2) Assessment factors. In determining
                                                   individual with a mobility disability for               shall have a harness, leash, or other                 whether reasonable modifications in
                                                   the main purpose of indoor or of both                   tether, unless either the handler is                  policies, practices, or procedures can be
                                                   indoor and outdoor locomotion. This                     unable because of a disability to use a               made to allow a miniature horse into a
                                                   definition does not apply to Federal                    harness, leash, or other tether, or the use           specific facility, a public entity shall
                                                   wilderness areas; wheelchairs in such                   of a harness, leash, or other tether                  consider—
                                                   areas are defined in section 508(c)(2) of               would interfere with the service                        (i) The type, size, and weight of the
                                                   the ADA, 42 U.S.C. 12207(c)(2).                         animal’s safe, effective performance of               miniature horse and whether the facility
                                                                                                           work or tasks, in which case the service              can accommodate these features;
                                                   Subpart B—General Requirements                          animal must be otherwise under the                      (ii) Whether the handler has sufficient
                                                                                                           handler’s control (e.g., voice control,               control of the miniature horse;
                                                   ■ 3. Amend § 35.130 by adding                           signals, or other effective means).                     (iii) Whether the miniature horse is
                                                   paragraph (h) to read as follows:                                                                             housebroken; and
                                                                                                              (e) Care or supervision. A public
                                                   § 35.130 General prohibitions against                   entity is not responsible for the care or               (iv) Whether the miniature horse’s
                                                   discrimination.                                         supervision of a service animal.                      presence in a specific facility
                                                                                                              (f) Inquiries. A public entity shall not           compromises legitimate safety
                                                   *      *     *       *      *
                                                                                                           ask about the nature or extent of a                   requirements that are necessary for safe
                                                                                                           person’s disability, but may make two                 operation.
                                                   *     *     *    *     *                                                                                        (C) Other requirements. Paragraphs
                                                     (h) A public entity may impose                        inquiries to determine whether an
                                                                                                           animal qualifies as a service animal. A               35.136(c) through (h) of this section,
                                                   legitimate safety requirements necessary                                                                      which apply to service animals, shall
                                                   for the safe operation of its services,                 public entity may ask if the animal is
                                                                                                           required because of a disability and                  also apply to miniature horses.
                                                   programs, or activities. However, the
                                                                                                           what work or task the animal has been                 ■ 6. Add § 35.137 to read as follows:
                                                   public entity must ensure that its safety
                                                   requirements are based on actual risks,                 trained to perform. A public entity shall             § 35.137   Mobility devices.
                                                   not on mere speculation, stereotypes, or                not require documentation, such as
                                                                                                                                                                    (a) Use of wheelchairs and manually-
                                                   generalizations about individuals with                  proof that the animal has been certified,
                                                                                                                                                                 powered mobility aids. A public entity
                                                   disabilities.                                           trained, or licensed as a service animal.
                                                                                                                                                                 shall permit individuals with mobility
                                                   ■ 4. Amend § 35.133 by adding
                                                                                                           Generally, a public entity may not make
                                                                                                                                                                 disabilities to use wheelchairs and
                                                   paragraph (c) to read as follows:                       these inquiries about a service animal
                                                                                                                                                                 manually-powered mobility aids, such
                                                                                                           when it is readily apparent that an
                                                                                                                                                                 as walkers, crutches, canes, braces, or
                                                   § 35.133 Maintenance of accessible                      animal is trained to do work or perform
                                                   features.                                                                                                     other similar devices designed for use
                                                                                                           tasks for an individual with a disability
                                                                                                                                                                 by individuals with mobility
                                                   *      *     *     *     *                              (e.g., the dog is observed guiding an
                                                                                                                                                                 disabilities, in any areas open to
                                                     (c) If the 2010 Standards reduce the                  individual who is blind or has low
                                                                                                                                                                 pedestrian use.
                                                   technical requirements or the number of                 vision, pulling a person’s wheelchair, or                (b)(1) Use of other power-driven
                                                   required accessible elements below the                  providing assistance with stability or                mobility devices. A public entity shall
                                                   number required by the 1991 Standards,                  balance to an individual with an                      make reasonable modifications in its
                                                   the technical requirements or the                       observable mobility disability).                      policies, practices, or procedures to
                                                   number of accessible elements in a                         (g) Access to areas of a public entity.            permit the use of other power-driven
                                                   facility subject to this part may be                    Individuals with disabilities shall be                mobility devices by individuals with
                                                   reduced in accordance with the                          permitted to be accompanied by their                  mobility disabilities, unless the public
                                                   requirements of the 2010 Standards.                     service animals in all areas of a public              entity can demonstrate that the class of
                                                   *      *     *     *     *                              entity’s facilities where members of the              other power-driven mobility devices
                                                   ■ 5. Add § 35.136 to read as follows:
                                                                                                           public, participants in services,                     cannot be operated in accordance with
                                                                                                           programs or activities, or invitees, as               legitimate safety requirements that the
                                                   § 35.136   Service animals.                             relevant, are allowed to go.                          public entity has adopted pursuant to
                                                      (a) General. Generally, a public entity                 (h) Surcharges. A public entity shall              § 35.130(h).
                                                   shall modify its policies, practices, or                not ask or require an individual with a                  (2) Assessment factors. In determining
                                                   procedures to permit the use of a service               disability to pay a surcharge, even if                whether a particular other power-driven
                                                   animal by an individual with a                          people accompanied by pets are                        mobility device can be allowed in a
                                                   disability.                                             required to pay fees, or to comply with               specific facility as a reasonable
                                                      (b) Exceptions. A public entity may                  other requirements generally not                      modification under paragraph (b)(1) of
                                                   ask an individual with a disability to                  applicable to people without pets. If a               this section, a public entity shall
                                                   remove a service animal from the                        public entity normally charges                        consider—
                                                   premises if—                                            individuals for the damage they cause,                   (i) The type, size, weight, dimensions,
                                                      (1) The animal is out of control and                 an individual with a disability may be                and speed of the device;
                                                   the animal’s handler does not take                      charged for damage caused by his or her                  (ii) The facility’s volume of pedestrian
                                                   effective action to control it; or                      service animal.                                       traffic (which may vary at different
                                                      (2) The animal is not housebroken.                      (i) Miniature horses. (1) Reasonable               times of the day, week, month, or year);
                                                      (c) If an animal is properly excluded.               modifications. A public entity shall                     (iii) The facility’s design and
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                                                   If a public entity properly excludes a                  make reasonable modifications in                      operational characteristics (e.g., whether
                                                   service animal under § 35.136(b), it shall              policies, practices, or procedures to                 its service, program, or activity is
                                                   give the individual with a disability the               permit the use of a miniature horse by                conducted indoors, its square footage,
                                                   opportunity to participate in the service,              an individual with a disability if the                the density and placement of stationary
                                                   program, or activity without having the                 miniature horse has been individually                 devices, and the availability of storage
                                                   service animal on the premises.                         trained to do work or perform tasks for               for the device, if requested by the user);
                                                      (d) Animal under handler’s control. A                the benefit of the individual with a                     (iv) Whether legitimate safety
                                                   service animal shall be under the                       disability.                                           requirements can be established to


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                          56179

                                                   permit the safe operation of the other                     (iii) Through the same methods of                  public entity is not required to provide
                                                   power-driven mobility device in the                     distribution;                                         more than three contiguous seats for
                                                   specific facility; and                                     (iv) In the same types and numbers of              each wheelchair space. Such seats may
                                                     (v) Whether the use of the other                      ticketing sales outlets, including                    include wheelchair spaces.
                                                   power-driven mobility device creates a                  telephone service, in-person ticket sales                (2) Insufficient additional contiguous
                                                   substantial risk of serious harm to the                 at the facility, or third-party ticketing             seats available. If patrons are allowed to
                                                   immediate environment or natural or                     services, as other patrons; and                       purchase at least four tickets, and there
                                                   cultural resources, or poses a conflict                    (v) Under the same terms and                       are fewer than three such additional
                                                   with Federal land management laws and                   conditions as other tickets sold for the              contiguous seat tickets available for
                                                   regulations.                                            same event or series of events.                       purchase, a public entity shall offer the
                                                     (c)(1) Inquiry about disability. A                       (b) Identification of available                    next highest number of such seat tickets
                                                   public entity shall not ask an individual               accessible seating. A public entity that              available for purchase and shall make
                                                   using a wheelchair or other power-                      sells or distributes tickets for a single             up the difference by offering tickets for
                                                   driven mobility device questions about                  event or series of events shall, upon                 sale for seats that are as close as possible
                                                   the nature and extent of the individual’s               inquiry—                                              to the accessible seats.
                                                   disability.                                                (1) Inform individuals with                           (3) Sales limited to less than four
                                                     (2) Inquiry into use of other power-                  disabilities, their companions, and third             tickets. If a public entity limits sales of
                                                   driven mobility device. A public entity                 parties purchasing tickets for accessible             tickets to fewer than four seats per
                                                   may ask a person using an other power-                  seating on behalf of individuals with                 patron, then the public entity is only
                                                   driven mobility device to provide a                     disabilities of the locations of all unsold           obligated to offer as many seats to
                                                   credible assurance that the mobility                    or otherwise available accessible seating             patrons with disabilities, including the
                                                   device is required because of the                       for any ticketed event or events at the               ticket for the wheelchair space, as it
                                                   person’s disability. A public entity that               facility;                                             would offer to patrons without
                                                   permits the use of an other power-                         (2) Identify and describe the features             disabilities.
                                                   driven mobility device by an individual                 of available accessible seating in enough                (4) Maximum number of tickets
                                                   with a mobility disability shall accept                 detail to reasonably permit an                        patrons may purchase exceeds four. If
                                                   the presentation of a valid, State-issued,              individual with a disability to assess                patrons are allowed to purchase more
                                                   disability parking placard or card, or                  independently whether a given                         than four tickets, a public entity shall
                                                   other State-issued proof of disability as               accessible seating location meets his or              allow patrons with disabilities to
                                                   a credible assurance that the use of the                her accessibility needs; and                          purchase up to the same number of
                                                   other power-driven mobility device is                      (3) Provide materials, such as seating             tickets, including the ticket for the
                                                   for the individual’s mobility disability.               maps, plans, brochures, pricing charts,               wheelchair space.
                                                   In lieu of a valid, State-issued disability             or other information, that identify                      (5) Group sales. If a group includes
                                                   parking placard or card, or State-issued                accessible seating and information                    one or more individuals who need to
                                                   proof of disability, a public entity shall              relevant thereto with the same text or                use accessible seating because of a
                                                   accept as a credible assurance a verbal                 visual representations as other seats, if             mobility disability or because their
                                                   representation, not contradicted by                     such materials are provided to the                    disability requires the use of the
                                                   observable fact, that the other power-                  general public.                                       accessible features that are provided in
                                                   driven mobility device is being used for                   (c) Ticket prices. The price of tickets            accessible seating, the group shall be
                                                   a mobility disability. A ‘‘valid’’ disability           for accessible seating for a single event             placed in a seating area with accessible
                                                   placard or card is one that is presented                or series of events shall not be set higher           seating so that, if possible, the group can
                                                   by the individual to whom it was issued                 than the price for other tickets in the               sit together. If it is necessary to divide
                                                   and is otherwise in compliance with the                 same seating section for the same event               the group, it should be divided so that
                                                   State of issuance’s requirements for                    or series of events. Tickets for accessible           the individuals in the group who use
                                                   disability placards or cards.                           seating must be made available at all                 wheelchairs are not isolated from their
                                                                                                           price levels for every event or series of             group.
                                                   ■ 7. Add § 35.138 to read as follows:
                                                                                                           events. If tickets for accessible seating at             (e) Hold-and-release of tickets for
                                                   § 35.138   Ticketing.                                   a particular price level are not available            accessible seating. (1) Tickets for
                                                      (a)(1) For the purposes of this section,             because of inaccessible features, then                accessible seating may be released for
                                                   ‘‘accessible seating’’ is defined as                    the percentage of tickets for accessible              sale in certain limited circumstances. A
                                                   wheelchair spaces and companion seats                   seating that should have been available               public entity may release unsold tickets
                                                   that comply with sections 221 and 802                   at that price level (determined by the                for accessible seating for sale to
                                                   of the 2010 Standards along with any                    ratio of the total number of tickets at               individuals without disabilities for their
                                                   other seats required to be offered for sale             that price level to the total number of               own use for a single event or series of
                                                   to the individual with a disability                     tickets in the assembly area) shall be                events only under the following
                                                   pursuant to paragraph (d) of this                       offered for purchase, at that price level,            circumstances—
                                                   section.                                                in a nearby or similar accessible                        (i) When all non-accessible tickets
                                                      (2) Ticket sales. A public entity that               location.                                             (excluding luxury boxes, club boxes, or
                                                   sells tickets for a single event or series                 (d) Purchasing multiple tickets. (1)               suites) have been sold;
                                                   of events shall modify its policies,                    General. For each ticket for a wheelchair                (ii) When all non-accessible tickets in
                                                   practices, or procedures to ensure that                 space purchased by an individual with                 a designated seating area have been sold
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                                                   individuals with disabilities have an                   a disability or a third-party purchasing              and the tickets for accessible seating are
                                                   equal opportunity to purchase tickets                   such a ticket at his or her request, a                being released in the same designated
                                                   for accessible seating—                                 public entity shall make available for                area; or
                                                      (i) During the same hours;                           purchase three additional tickets for                    (iii) When all non-accessible tickets in
                                                      (ii) During the same stages of ticket                seats in the same row that are                        a designated price category have been
                                                   sales, including, but not limited to, pre-              contiguous with the wheelchair space,                 sold and the tickets for accessible
                                                   sales, promotions, lotteries, wait-lists,               provided that at the time of purchase                 seating are being released within the
                                                   and general sales;                                      there are three such seats available. A               same designated price category.


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                                                   56180        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                      (2) No requirement to release                           (h) Prevention of fraud in purchase of             § 35.150   Existing facilities.
                                                   accessible tickets. Nothing in this                     tickets for accessible seating. A public              *       *    *      *     *
                                                   paragraph requires a facility to release                entity may not require proof of                          (b) * * *
                                                   tickets for accessible seating to                       disability, including, for example, a                    (2)(i) Safe harbor. Elements that have
                                                   individuals without disabilities for their              doctor’s note, before selling tickets for             not been altered in existing facilities on
                                                   own use.                                                accessible seating.                                   or after March 15, 2012 and that comply
                                                      (3) Release of series-of-events tickets                 (1) Single-event tickets. For the sale of          with the corresponding technical and
                                                   on a series-of-events basis. (i) Series-of-             single-event tickets, it is permissible to            scoping specifications for those
                                                   events tickets sell-out when no                         inquire whether the individual                        elements in either the 1991 Standards or
                                                   ownership rights are attached. When                     purchasing the tickets for accessible                 in the Uniform Federal Accessibility
                                                   series-of-events tickets are sold out and               seating has a mobility disability or a                Standards (UFAS), Appendix A to 41
                                                   a public entity releases and sells                      disability that requires the use of the               CFR part 101–19.6 (July 1, 2002 ed.), 49
                                                   accessible seating to individuals                       accessible features that are provided in              FR 31528, app. A (Aug. 7, 1984) are not
                                                   without disabilities for a series of                    accessible seating, or is purchasing the              required to be modified in order to
                                                   events, the public entity shall establish               tickets for an individual who has a                   comply with the requirements set forth
                                                   a process that prevents the automatic                   mobility disability or a disability that              in the 2010 Standards.
                                                   reassignment of the accessible seating to               requires the use of the accessible                       (ii) The safe harbor provided in
                                                   such ticket holders for future seasons,                 features that are provided in the                     § 35.150(b)(2)(i) does not apply to those
                                                   future years, or future series so that                  accessible seating.                                   elements in existing facilities that are
                                                   individuals with disabilities who                          (2) Series-of-events tickets. For series-          subject to supplemental requirements
                                                   require the features of accessible seating              of-events tickets, it is permissible to ask           (i.e., elements for which there are
                                                   and who become newly eligible to                        the individual purchasing the tickets for             neither technical nor scoping
                                                   purchase tickets when these series-of-                  accessible seating to attest in writing               specifications in the 1991 Standards).
                                                   events tickets are available for purchase               that the accessible seating is for a person           Elements in the 2010 Standards not
                                                   have an opportunity to do so.                           who has a mobility disability or a                    eligible for the element-by-element safe
                                                      (ii) Series-of-events tickets when                   disability that requires the use of the               harbor are identified as follows—
                                                   ownership rights are attached. When                     accessible features that are provided in                 (A) Residential facilities dwelling
                                                   series-of-events tickets with an                        the accessible seating.                               units, sections 233 and 809.
                                                   ownership right in accessible seating                      (3) Investigation of fraud. A public                  (B) Amusement rides, sections 234
                                                   areas are forfeited or otherwise returned               entity may investigate the potential                  and 1002; 206.2.9; 216.12.
                                                   to a public entity, the public entity shall             misuse of accessible seating where there                 (C) Recreational boating facilities,
                                                   make reasonable modifications in its                    is good cause to believe that such                    sections 235 and 1003; 206.2.10.
                                                   policies, practices, or procedures to                   seating has been purchased                               (D) Exercise machines and
                                                   afford individuals with mobility                        fraudulently.                                         equipment, sections 236 and 1004;
                                                   disabilities or individuals with                        ■ 8. Add § 35.139 to read as follows:                 206.2.13.
                                                   disabilities that require the features of                                                                        (E) Fishing piers and platforms,
                                                                                                           § 35.139    Direct threat.
                                                   accessible seating an opportunity to                                                                          sections 237 and 1005; 206.2.14.
                                                   purchase such tickets in accessible                        (a) This part does not require a public               (F) Golf facilities, sections 238 and
                                                   seating areas.                                          entity to permit an individual to                     1006; 206.2.15.
                                                      (f) Ticket transfer. Individuals with                participate in or benefit from the                       (G) Miniature golf facilities, sections
                                                   disabilities who hold tickets for                       services, programs, or activities of that             239 and 1007; 206.2.16.
                                                   accessible seating shall be permitted to                public entity when that individual                       (H) Play areas, sections 240 and 1008;
                                                   transfer tickets to third parties under the             poses a direct threat to the health or                206.2.17.
                                                   same terms and conditions and to the                    safety of others.                                        (I) Saunas and steam rooms, sections
                                                   same extent as other spectators holding                    (b) In determining whether an                      241 and 612.
                                                   the same type of tickets, whether they                  individual poses a direct threat to the                  (J) Swimming pools, wading pools,
                                                   are for a single event or series of events.             health or safety of others, a public entity           and spas, sections 242 and 1009.
                                                      (g) Secondary ticket market. (1) A                   must make an individualized                              (K) Shooting facilities with firing
                                                   public entity shall modify its policies,                assessment, based on reasonable                       positions, sections 243 and 1010.
                                                   practices, or procedures to ensure that                 judgment that relies on current medical                  (L) Miscellaneous.
                                                   an individual with a disability may use                 knowledge or on the best available                       (1) Team or player seating, section
                                                   a ticket acquired in the secondary ticket               objective evidence, to ascertain: the                 221.2.1.4.
                                                   market under the same terms and                         nature, duration, and severity of the                    (2) Accessible route to bowling lanes,
                                                   conditions as other individuals who                     risk; the probability that the potential              section 206.2.11.
                                                   hold a ticket acquired in the secondary                 injury will actually occur; and whether                  (3) Accessible route in court sports
                                                   ticket market for the same event or                     reasonable modifications of policies,                 facilities, section 206.2.12.
                                                   series of events.                                       practices, or procedures or the provision
                                                                                                                                                                 *       *    *      *     *
                                                                                                           of auxiliary aids or services will
                                                      (2) If an individual with a disability                                                                     ■ 10. Amend § 35.151 as follows—
                                                                                                           mitigate the risk.
                                                   acquires a ticket or series of tickets to                                                                        a. Revise paragraphs (a) through (d),
                                                   an inaccessible seat through the                                                                                 b. Revise the heading of paragraph (c),
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                                                                                                           Subpart D—Program Accessibility
                                                   secondary market, a public entity shall                                                                          c. Redesignate paragraph (e) as
                                                   make reasonable modifications to its                    ■ 9. Amend § 35.150 as follows—                       paragraph (i), and
                                                   policies, practices, or procedures to                   ■ a. Redesignate paragraph (b)(2) as                     d. Add paragraphs (e), (f), (g), (h), (j),
                                                   allow the individual to exchange his                    paragraph (b)(3),                                     and (k), to read as follows:
                                                   ticket for one to an accessible seat in a               ■ b. Add the words ‘‘or acquisition’’ after
                                                   comparable location if accessible seating               the word ‘‘redesign’’ in the first sentence           § 35.151   New construction and alterations.
                                                   is vacant at the time the individual                    of paragraph (b)(1) and add new                         (a) Design and construction. (1) Each
                                                   presents the ticket to the public entity.               paragraph (b)(2) to read as follows:                  facility or part of a facility constructed


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                         56181

                                                   by, on behalf of, or for the use of a                   access to an area of a facility that                  alteration to a primary function area
                                                   public entity shall be designed and                     contains a primary function shall be                  served by that path of travel.
                                                   constructed in such manner that the                     made so as to ensure that, to the                        (iii) Disproportionality. (A)
                                                   facility or part of the facility is readily             maximum extent feasible, the path of                  Alterations made to provide an
                                                   accessible to and usable by individuals                 travel to the altered area and the                    accessible path of travel to the altered
                                                   with disabilities, if the construction was              restrooms, telephones, and drinking                   area will be deemed disproportionate to
                                                   commenced after January 26, 1992.                       fountains serving the altered area are                the overall alteration when the cost
                                                      (2) Exception for structural                         readily accessible to and usable by                   exceeds 20% of the cost of the alteration
                                                   impracticability. (i) Full compliance                   individuals with disabilities, including              to the primary function area.
                                                   with the requirements of this section is                individuals who use wheelchairs,                         (B) Costs that may be counted as
                                                   not required where a public entity can                  unless the cost and scope of such                     expenditures required to provide an
                                                   demonstrate that it is structurally                     alterations is disproportionate to the                accessible path of travel may include:
                                                   impracticable to meet the requirements.                 cost of the overall alteration.                          (1) Costs associated with providing an
                                                   Full compliance will be considered                         (i) Primary function. A ‘‘primary                  accessible entrance and an accessible
                                                   structurally impracticable only in those                function’’ is a major activity for which              route to the altered area, for example,
                                                   rare circumstances when the unique                      the facility is intended. Areas that                  the cost of widening doorways or
                                                   characteristics of terrain prevent the                  contain a primary function include, but               installing ramps;
                                                   incorporation of accessibility features.                are not limited to, the dining area of a                 (2) Costs associated with making
                                                      (ii) If full compliance with this                    cafeteria, the meeting rooms in a                     restrooms accessible, such as installing
                                                   section would be structurally                           conference center, as well as offices and             grab bars, enlarging toilet stalls,
                                                   impracticable, compliance with this                     other work areas in which the activities              insulating pipes, or installing accessible
                                                   section is required to the extent that it               of the public entity using the facility are           faucet controls;
                                                   is not structurally impracticable. In that              carried out.                                             (3) Costs associated with providing
                                                   case, any portion of the facility that can                 (A) Mechanical rooms, boiler rooms,                accessible telephones, such as relocating
                                                   be made accessible shall be made                        supply storage rooms, employee lounges                the telephone to an accessible height,
                                                   accessible to the extent that it is not                 or locker rooms, janitorial closets,                  installing amplification devices, or
                                                   structurally impracticable.                             entrances, and corridors are not areas                installing a text telephone (TTY); and
                                                      (iii) If providing accessibility in                  containing a primary function.                           (4) Costs associated with relocating an
                                                   conformance with this section to                        Restrooms are not areas containing a                  inaccessible drinking fountain.
                                                   individuals with certain disabilities                   primary function unless the provision of                 (iv) Duty to provide accessible
                                                   (e.g., those who use wheelchairs) would                 restrooms is a primary purpose of the                 features in the event of
                                                   be structurally impracticable,                          area, e.g., in highway rest stops.                    disproportionality. (A) When the cost of
                                                   accessibility shall nonetheless be                         (B) For the purposes of this section,              alterations necessary to make the path of
                                                   ensured to persons with other types of                  alterations to windows, hardware,                     travel to the altered area fully accessible
                                                   disabilities, (e.g., those who use                      controls, electrical outlets, and signage             is disproportionate to the cost of the
                                                   crutches or who have sight, hearing, or                 shall not be deemed to be alterations                 overall alteration, the path of travel
                                                   mental impairments) in accordance with                  that affect the usability of or access to             shall be made accessible to the extent
                                                   this section.                                           an area containing a primary function.                that it can be made accessible without
                                                      (b) Alterations. (1) Each facility or                   (ii) A ‘‘path of travel’’ includes a               incurring disproportionate costs.
                                                   part of a facility altered by, on behalf of,            continuous, unobstructed way of                          (B) In choosing which accessible
                                                   or for the use of a public entity in a                  pedestrian passage by means of which                  elements to provide, priority should be
                                                   manner that affects or could affect the                 the altered area may be approached,                   given to those elements that will
                                                   usability of the facility or part of the                entered, and exited, and which connects               provide the greatest access, in the
                                                   facility shall, to the maximum extent                   the altered area with an exterior                     following order—
                                                   feasible, be altered in such manner that                approach (including sidewalks, streets,                  (1) An accessible entrance;
                                                   the altered portion of the facility is                  and parking areas), an entrance to the                   (2) An accessible route to the altered
                                                   readily accessible to and usable by                     facility, and other parts of the facility.            area;
                                                   individuals with disabilities, if the                      (A) An accessible path of travel may                  (3) At least one accessible restroom
                                                   alteration was commenced after January                  consist of walks and sidewalks, curb                  for each sex or a single unisex restroom;
                                                   26, 1992.                                               ramps and other interior or exterior                     (4) Accessible telephones;
                                                      (2) The path of travel requirements of               pedestrian ramps; clear floor paths                      (5) Accessible drinking fountains; and
                                                   § 35.151(b)(4) shall apply only to                      through lobbies, corridors, rooms, and                   (6) When possible, additional
                                                   alterations undertaken solely for                       other improved areas; parking access                  accessible elements such as parking,
                                                   purposes other than to meet the program                 aisles; elevators and lifts; or a                     storage, and alarms.
                                                   accessibility requirements of § 35.150.                 combination of these elements.                           (v) Series of smaller alterations. (A)
                                                      (3)(i) Alterations to historic properties               (B) For the purposes of this section,              The obligation to provide an accessible
                                                   shall comply, to the maximum extent                     the term ‘‘path of travel’’ also includes             path of travel may not be evaded by
                                                   feasible, with the provisions applicable                the restrooms, telephones, and drinking               performing a series of small alterations
                                                   to historic properties in the design                    fountains serving the altered area.                   to the area served by a single path of
                                                   standards specified in § 35.151(c).                        (C) Safe harbor. If a public entity has            travel if those alterations could have
                                                      (ii) If it is not feasible to provide                constructed or altered required elements              been performed as a single undertaking.
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                                                   physical access to an historic property                 of a path of travel in accordance with                   (B)(1) If an area containing a primary
                                                   in a manner that will not threaten or                   the specifications in either the 1991                 function has been altered without
                                                   destroy the historic significance of the                Standards or the Uniform Federal                      providing an accessible path of travel to
                                                   building or facility, alternative methods               Accessibility Standards before March                  that area, and subsequent alterations of
                                                   of access shall be provided pursuant to                 15, 2012, the public entity is not                    that area, or a different area on the same
                                                   the requirements of § 35.150.                           required to retrofit such elements to                 path of travel, are undertaken within
                                                      (4) Path of travel. An alteration that               reflect incremental changes in the 2010               three years of the original alteration, the
                                                   affects or could affect the usability of or             Standards solely because of an                        total cost of alterations to the primary


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                                                   56182        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   function areas on that path of travel                   or altered before March 15, 2012 and                  applicable to transient lodging,
                                                   during the preceding three year period                  that do not comply with the 1991                      including, but not limited to, the
                                                   shall be considered in determining                      Standards or with UFAS shall, on or                   requirements for transient lodging guest
                                                   whether the cost of making that path of                 after March 15, 2012, be made                         rooms in sections 224 and 806 subject
                                                   travel accessible is disproportionate.                  accessible in accordance with the 2010                to the following exceptions. For the
                                                      (2) Only alterations undertaken on or                Standards.                                            purposes of the application of this
                                                   after March 15, 2011 shall be considered                                                                      section, the term ‘‘sleeping room’’ is
                                                   in determining if the cost of providing                          APPENDIX TO § 35.151(C)                      intended to be used interchangeably
                                                   an accessible path of travel is                                                                               with the term ‘‘guest room’’ as it is used
                                                   disproportionate to the overall cost of                 Compliance dates for                                  in the transient lodging standards.
                                                   the alterations.                                        new construction and         Applicable standards        (1) Kitchens within housing units
                                                      (c) Accessibility standards and                           alterations                                      containing accessible sleeping rooms
                                                   compliance date. (1) If physical                                                                              with mobility features (including suites
                                                                                                           Before September 15,         1991 Standards or
                                                   construction or alterations commence                      2010.                        UFAS.                  and clustered sleeping rooms) or on
                                                   after July 26, 1992, but prior to the                   On or after Sep-             1991 Standards,          floors containing accessible sleeping
                                                   September 15, 2010, then new                              tember 15, 2010              UFAS, or 2010          rooms with mobility features shall
                                                   construction and alterations subject to                   and before March             Standards.             provide turning spaces that comply with
                                                   this section must comply with either                      15, 2012.                                           section 809.2.2 of the 2010 Standards
                                                   UFAS or the 1991 Standards except that                  On or after March 15,        2010 Standards.          and kitchen work surfaces that comply
                                                   the elevator exemption contained at                       2012.                                               with section 804.3 of the 2010
                                                   section 4.1.3(5) and section 4.1.6(1)(k) of                                                                   Standards.
                                                   the 1991 Standards shall not apply.                        (d) Scope of coverage. The 1991                       (2) Multi-bedroom housing units
                                                   Departures from particular requirements                 Standards and the 2010 Standards apply                containing accessible sleeping rooms
                                                   of either standard by the use of other                  to fixed or built-in elements of                      with mobility features shall have an
                                                   methods shall be permitted when it is                   buildings, structures, site                           accessible route throughout the unit in
                                                   clearly evident that equivalent access to               improvements, and pedestrian routes or                accordance with section 809.2 of the
                                                   the facility or part of the facility is                 vehicular ways located on a site. Unless              2010 Standards.
                                                   thereby provided.                                       specifically stated otherwise, the                       (3) Apartments or townhouse facilities
                                                      (2) If physical construction or                      advisory notes, appendix notes, and                   that are provided by or on behalf of a
                                                   alterations commence on or after                        figures contained in the 1991 Standards               place of education, which are leased on
                                                   September 15, 2010 and before March                     and the 2010 Standards explain or                     a year-round basis exclusively to
                                                   15, 2012, then new construction and                     illustrate the requirements of the rule;              graduate students or faculty, and do not
                                                   alterations subject to this section may                 they do not establish enforceable                     contain any public use or common use
                                                   comply with one of the following: The                   requirements.                                         areas available for educational
                                                   2010 Standards, UFAS, or the 1991                          (e) Social service center                          programming, are not subject to the
                                                   Standards except that the elevator                      establishments. Group homes, halfway                  transient lodging standards and shall
                                                   exemption contained at section 4.1.3(5)                 houses, shelters, or similar social                   comply with the requirements for
                                                   and section 4.1.6(1)(k) of the 1991                     service center establishments that                    residential facilities in sections 233 and
                                                   Standards shall not apply. Departures                   provide either temporary sleeping                     809 of the 2010 Standards.
                                                   from particular requirements of either                  accommodations or residential dwelling                   (g) Assembly areas. Assembly areas
                                                   standard by the use of other methods                    units that are subject to this section                subject to this section shall comply with
                                                   shall be permitted when it is clearly                   shall comply with the provisions of the               the provisions of the 2010 Standards
                                                   evident that equivalent access to the                   2010 Standards applicable to residential              applicable to assembly areas, including,
                                                   facility or part of the facility is thereby             facilities, including, but not limited to,            but not limited to, sections 221 and 802.
                                                   provided.                                               the provisions in sections 233 and 809.               In addition, assembly areas shall ensure
                                                      (3) If physical construction or                         (1) In sleeping rooms with more than               that—
                                                   alterations commence on or after March                  25 beds covered by this section, a                       (1) In stadiums, arenas, and
                                                   15, 2012, then new construction and                     minimum of 5% of the beds shall have                  grandstands, wheelchair spaces and
                                                   alterations subject to this section shall               clear floor space complying with section              companion seats are dispersed to all
                                                   comply with the 2010 Standards.                         806.2.3 of the 2010 Standards.                        levels that include seating served by an
                                                      (4) For the purposes of this section,                   (2) Facilities with more than 50 beds              accessible route;
                                                   ceremonial groundbreaking or razing of                  covered by this section that provide                     (2) Assembly areas that are required to
                                                   structures prior to site preparation do                 common use bathing facilities shall                   horizontally disperse wheelchair spaces
                                                   not commence physical construction or                   provide at least one roll-in shower with              and companion seats by section
                                                   alterations.                                            a seat that complies with the relevant                221.2.3.1 of the 2010 Standards and
                                                      (5) Noncomplying new construction                    provisions of section 608 of the 2010                 have seating encircling, in whole or in
                                                   and alterations. (i) Newly constructed or               Standards. Transfer-type showers are                  part, a field of play or performance area
                                                   altered facilities or elements covered by               not permitted in lieu of a roll-in shower             shall disperse wheelchair spaces and
                                                   §§ 35.151(a) or (b) that were constructed               with a seat, and the exceptions in                    companion seats around that field of
                                                   or altered before March 15, 2012, and                   sections 608.3 and 608.4 for residential              play or performance area;
                                                   that do not comply with the 1991                        dwelling units are not permitted. When                   (3) Wheelchair spaces and companion
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                                                   Standards or with UFAS shall before                     separate shower facilities are provided               seats are not located on (or obstructed
                                                   March 15, 2012, be made accessible in                   for men and for women, at least one                   by) temporary platforms or other
                                                   accordance with either the 1991                         roll-in shower shall be provided for                  movable structures, except that when an
                                                   Standards, UFAS, or the 2010                            each group.                                           entire seating section is placed on
                                                   Standards.                                                 (f) Housing at a place of education.               temporary platforms or other movable
                                                      (ii) Newly constructed or altered                    Housing at a place of education that is               structures in an area where fixed seating
                                                   facilities or elements covered by                       subject to this section shall comply with             is not provided, in order to increase
                                                   §§ 35.151(a) or (b) that were constructed               the provisions of the 2010 Standards                  seating for an event, wheelchair spaces


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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                         56183

                                                   and companion seats may be placed in                    facility. Cells with mobility features                entities, in whole or in part, including
                                                   that section. When wheelchair spaces                    shall be provided in each classification              private correctional facilities.
                                                   and companion seats are not required to                 level.                                                   (b) Discrimination prohibited. (1)
                                                   accommodate persons eligible for those                     (2) Alterations to detention and                   Public entities shall ensure that
                                                   spaces and seats, individual, removable                 correctional facilities. Alterations to               qualified inmates or detainees with
                                                   seats may be placed in those spaces and                 jails, prisons, and other detention and               disabilities shall not, because a facility
                                                   seats;                                                  correctional facilities shall comply with             is inaccessible to or unusable by
                                                      (4) Stadium-style movie theaters shall               the 2010 Standards except that public                 individuals with disabilities, be
                                                   locate wheelchair spaces and                            entities shall provide accessible                     excluded from participation in, or be
                                                   companion seats on a riser or cross-aisle               mobility features complying with                      denied the benefits of, the services,
                                                   in the stadium section that satisfies at                section 807.2 of the 2010 Standards for               programs, or activities of a public entity,
                                                   least one of the following criteria—                    a minimum of 3%, but no fewer than                    or be subjected to discrimination by any
                                                      (i) It is located within the rear 60% of             one, of the total number of cells being               public entity.
                                                   the seats provided in an auditorium; or                 altered until at least 3%, but no fewer                  (2) Public entities shall ensure that
                                                      (ii) It is located within the area of an             than one, of the total number of cells in             inmates or detainees with disabilities
                                                   auditorium in which the vertical                        a facility shall provide mobility features            are housed in the most integrated setting
                                                   viewing angles (as measured to the top                  complying with section 807.2. Altered                 appropriate to the needs of the
                                                   of the screen) are from the 40th to the                 cells with mobility features shall be                 individuals. Unless it is appropriate to
                                                   100th percentile of vertical viewing                    provided in each classification level.                make an exception, a public entity—
                                                   angles for all seats as ranked from the                 However, when alterations are made to                    (i) Shall not place inmates or
                                                   seats in the first row (1st percentile) to                                                                    detainees with disabilities in
                                                                                                           specific cells, detention and correctional
                                                   seats in the back row (100th percentile).                                                                     inappropriate security classifications
                                                                                                           facility operators may satisfy their
                                                      (h) Medical care facilities. Medical                                                                       because no accessible cells or beds are
                                                                                                           obligation to provide the required
                                                   care facilities that are subject to this                                                                      available;
                                                                                                           number of cells with mobility features                   (ii) Shall not place inmates or
                                                   section shall comply with the                           by providing the required mobility                    detainees with disabilities in designated
                                                   provisions of the 2010 Standards                        features in substitute cells (cells other             medical areas unless they are actually
                                                   applicable to medical care facilities,                  than those where alterations are                      receiving medical care or treatment;
                                                   including, but not limited to, sections                 originally planned), provided that each                  (iii) Shall not place inmates or
                                                   223 and 805. In addition, medical care                  substitute cell—                                      detainees with disabilities in facilities
                                                   facilities that do not specialize in the                   (i) Is located within the same prison              that do not offer the same programs as
                                                   treatment of conditions that affect                     site;                                                 the facilities where they would
                                                   mobility shall disperse the accessible                     (ii) Is integrated with other cells to the         otherwise be housed; and
                                                   patient bedrooms required by section                    maximum extent feasible;                                 (iv) Shall not deprive inmates or
                                                   223.2.1 of the 2010 Standards in a                         (iii) Has, at a minimum, equal                     detainees with disabilities of visitation
                                                   manner that is proportionate by type of                 physical access as the altered cells to               with family members by placing them in
                                                   medical specialty.                                      areas used by inmates or detainees for                distant facilities where they would not
                                                   *       *      *    *     *                             visitation, dining, recreation,                       otherwise be housed.
                                                      (j) Facilities with residential dwelling             educational programs, medical services,                  (3) Public entities shall implement
                                                   units for sale to individual owners. (1)                work programs, religious services, and                reasonable policies, including physical
                                                   Residential dwelling units designed and                 participation in other programs that the              modifications to additional cells in
                                                   constructed or altered by public entities               facility offers to inmates or detainees;              accordance with the 2010 Standards, so
                                                   that will be offered for sale to                        and                                                   as to ensure that each inmate with a
                                                   individuals shall comply with the                          (iv) If it is technically infeasible to            disability is housed in a cell with the
                                                   requirements for residential facilities in              locate a substitute cell within the same              accessible elements necessary to afford
                                                   the 2010 Standards, including sections                  prison site, a substitute cell must be                the inmate access to safe, appropriate
                                                   233 and 809.                                            provided at another prison site within                housing.
                                                      (2) The requirements of paragraph (1)                the corrections system.
                                                   also apply to housing programs that are                    (3) With respect to medical and long-              Subpart E—Communications
                                                   operated by public entities where design                term care facilities in jails, prisons, and           ■ 12. Amend § 35.160 by revising
                                                   and construction of particular                          other detention and correctional                      paragraphs (a) and (b), and adding
                                                   residential dwelling units take place                   facilities, public entities shall apply the           paragraphs (c) and (d) to read as follows:
                                                   only after a specific buyer has been                    2010 Standards technical and scoping
                                                   identified. In such programs, the                       requirements for those facilities                     § 35.160   General.
                                                   covered entity must provide the units                   irrespective of whether those facilities                 (a)(1) A public entity shall take
                                                   that comply with the requirements for                   are licensed.                                         appropriate steps to ensure that
                                                   accessible features to those pre-                       ■ 11. Add § 35.152 to read as follows:                communications with applicants,
                                                   identified buyers with disabilities who                                                                       participants, members of the public, and
                                                   have requested such a unit.                             § 35.152 Jails, detention and correctional            companions with disabilities are as
                                                      (k) Detention and correctional                       facilities, and community correctional                effective as communications with
                                                   facilities. (1) New construction of jails,              facilities.                                           others.
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                                                   prisons, and other detention and                          (a) General. This section applies to                   (2) For purposes of this section,
                                                   correctional facilities shall comply with               public entities that are responsible for              ‘‘companion’’ means a family member,
                                                   the 2010 Standards except that public                   the operation or management of adult                  friend, or associate of an individual
                                                   entities shall provide accessible                       and juvenile justice jails, detention and             seeking access to a service, program, or
                                                   mobility features complying with                        correctional facilities, and community                activity of a public entity, who, along
                                                   section 807.2 of the 2010 Standards for                 correctional facilities, either directly or           with such individual, is an appropriate
                                                   a minimum of 3%, but no fewer than                      through contractual, licensing, or other              person with whom the public entity
                                                   one, of the total number of cells in a                  arrangements with public or private                   should communicate.


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                                                   56184        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                      (b)(1) A public entity shall furnish                 face, arms, hands, and fingers, and the               to the Equal Employment Opportunity
                                                   appropriate auxiliary aids and services                 participating individual’s face, arms,                Commission.
                                                   where necessary to afford individuals                   hands, and fingers, regardless of his or              *     *    *     *     *
                                                   with disabilities, including applicants,                her body position;                                    ■ 15. Revise § 35.172 to read as follows:
                                                   participants, companions, and members                     (3) A clear, audible transmission of
                                                   of the public, an equal opportunity to                  voices; and                                           § 35.172 Investigations and compliance
                                                   participate in, and enjoy the benefits of,                (4) Adequate training to users of the               reviews.
                                                   a service, program, or activity of a                    technology and other involved                            (a) The designated agency shall
                                                   public entity.                                          individuals so that they may quickly                  investigate complaints for which it is
                                                      (2) The type of auxiliary aid or service             and efficiently set up and operate the                responsible under § 35.171.
                                                   necessary to ensure effective                           VRI.                                                     (b) The designated agency may
                                                   communication will vary in accordance                                                                         conduct compliance reviews of public
                                                                                                           ■ 13. Revise § 35.161 to read as follows:
                                                   with the method of communication                                                                              entities in order to ascertain whether
                                                   used by the individual; the nature,                     § 35.161    Telecommunications.                       there has been a failure to comply with
                                                   length, and complexity of the                                                                                 the nondiscrimination requirements of
                                                                                                              (a) Where a public entity
                                                   communication involved; and the                                                                               this part.
                                                                                                           communicates by telephone with
                                                   context in which the communication is                                                                            (c) Where appropriate, the designated
                                                                                                           applicants and beneficiaries, text
                                                   taking place. In determining what types                                                                       agency shall attempt informal resolution
                                                                                                           telephones (TTYs) or equally effective
                                                   of auxiliary aids and services are                                                                            of any matter being investigated under
                                                                                                           telecommunications systems shall be
                                                   necessary, a public entity shall give                                                                         this section, and, if resolution is not
                                                                                                           used to communicate with individuals
                                                   primary consideration to the requests of                                                                      achieved and a violation is found, issue
                                                                                                           who are deaf or hard of hearing or have
                                                   individuals with disabilities. In order to                                                                    to the public entity and the
                                                                                                           speech impairments.
                                                   be effective, auxiliary aids and services                                                                     complainant, if any, a Letter of Findings
                                                   must be provided in accessible formats,                    (b) When a public entity uses an
                                                                                                                                                                 that shall include—
                                                   in a timely manner, and in such a way                   automated-attendant system, including,
                                                                                                                                                                    (1) Findings of fact and conclusions of
                                                   as to protect the privacy and                           but not limited to, voicemail and
                                                                                                                                                                 law;
                                                   independence of the individual with a                   messaging, or an interactive voice                       (2) A description of a remedy for each
                                                   disability.                                             response system, for receiving and                    violation found (including
                                                      (c)(1) A public entity shall not require             directing incoming telephone calls, that              compensatory damages where
                                                   an individual with a disability to bring                system must provide effective real-time               appropriate); and
                                                   another individual to interpret for him                 communication with individuals using                     (3) Notice of the rights and procedures
                                                   or her.                                                 auxiliary aids and services, including                available under paragraph (d) of this
                                                      (2) A public entity shall not rely on                TTYs and all forms of FCC-approved                    section and §§ 35.173 and 35.174.
                                                   an adult accompanying an individual                     telecommunications relay systems,                        (d) At any time, the complainant may
                                                   with a disability to interpret or facilitate            including Internet-based relay systems.               file a private suit pursuant to section
                                                   communication except—                                      (c) A public entity shall respond to               203 of the Act, 42 U.S.C. 12133, whether
                                                      (i) In an emergency involving an                     telephone calls from a                                or not the designated agency finds a
                                                   imminent threat to the safety or welfare                telecommunications relay service                      violation.
                                                   of an individual or the public where                    established under title IV of the ADA in
                                                   there is no interpreter available; or                   the same manner that it responds to                   Subpart G—Designated Agencies
                                                      (ii) Where the individual with a                     other telephone calls.
                                                   disability specifically requests that the                                                                     ■ 16. Amend § 35.190 by adding
                                                   accompanying adult interpret or                         Subpart F—Compliance Procedures                       paragraph (e) to read as follows:
                                                   facilitate communication, the                                                                                 § 35.190   Designated Agencies.
                                                   accompanying adult agrees to provide                    ■ 14. Amend § 35.171 by revising
                                                   such assistance, and reliance on that                   paragraph (a)(2) to read as follows:                  *     *     *     *     *
                                                                                                                                                                   (e) When the Department receives a
                                                   adult for such assistance is appropriate                § 35.171    Acceptance of complaints.                 complaint directed to the Attorney
                                                   under the circumstances.
                                                      (3) A public entity shall not rely on                  (a) * * *                                           General alleging a violation of this part
                                                   a minor child to interpret or facilitate                  (2)(i) If an agency other than the                  that may fall within the jurisdiction of
                                                   communication, except in an emergency                   Department of Justice determines that it              a designated agency or another Federal
                                                   involving an imminent threat to the                     does not have section 504 jurisdiction                agency that may have jurisdiction under
                                                   safety or welfare of an individual or the               and is not the designated agency, it shall            section 504, the Department may
                                                   public where there is no interpreter                    promptly refer the complaint to the                   exercise its discretion to retain the
                                                   available.                                              appropriate designated agency, the                    complaint for investigation under this
                                                      (d) Video remote interpreting (VRI)                  agency that has section 504 jurisdiction,             part.
                                                   services. A public entity that chooses to               or the Department of Justice, and so                  ■ 17. Redesignate Appendix A to part
                                                   provide qualified interpreters via VRI                  notify the complainant.                               35 as Appendix B to part 35 and add
                                                   services shall ensure that it provides—                   (ii) When the Department of Justice                 Appendix A to read as follows:
                                                      (1) Real-time, full-motion video and                 receives a complaint for which it does
                                                                                                                                                                 Appendix A to Part 35—Guidance to
                                                   audio over a dedicated high-speed,                      not have jurisdiction under section 504
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                                                                                                                                                                 Revisions to ADA Regulation on
                                                   wide-bandwidth video connection or                      and is not the designated agency, it may
                                                                                                                                                                 Nondiscrimination on the Basis of
                                                   wireless connection that delivers high-                 exercise jurisdiction pursuant to
                                                                                                                                                                 Disability in State and Local
                                                   quality video images that do not                        § 35.190(e) or refer the complaint to an
                                                                                                                                                                 Government Services
                                                   produce lags, choppy, blurry, or grainy                 agency that does have jurisdiction under
                                                   images, or irregular pauses in                          section 504 or to the appropriate agency                Note: This Appendix contains guidance
                                                   communication;                                          designated in subpart G of this part or,              providing a section-by-section analysis of the
                                                      (2) A sharply delineated image that is               in the case of an employment complaint                revisions to 28 CFR part 35 published on
                                                   large enough to display the interpreter’s               that is also subject to title I of the Act,           September 15, 2010.



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56185

                                                   Section-By-Section Analysis and Response to             notes as a form of auxiliary aid because, they        § 35.160 (Communications), but is referred to
                                                   Public Comments                                         argue, most exchanges are not simple and are          as VRI in both the final rule and Appendix
                                                     This section provides a detailed                      not communicated effectively using                    A to more accurately reflect the terminology
                                                   description of the Department’s changes to              handwritten notes. One major advocacy                 used in other regulations and among users of
                                                   the title II regulation, the reasoning behind           organization, for example, noted that the             the technology.
                                                   those changes, and responses to public                  speed at which individuals communicate                   In the NPRM, the Department noted that
                                                   comments received on these topics. The                  orally or use sign language averages about            technological advances in the 18 years since
                                                   Section-by-Section Analysis follows the                 200 words per minute or more while                    the ADA’s enactment had increased the range
                                                   order of the title II regulation itself, except         exchange of notes often leads to truncated or         of auxiliary aids and services for those who
                                                   that, if the Department has not changed a               incomplete communication. For persons                 are blind or have low vision. As a result the
                                                   regulatory section, the unchanged section has           whose primary language is American Sign               Department proposed additional examples to
                                                   not been mentioned.                                     Language (ASL), some commenters pointed               paragraph (2) of the definition, including
                                                                                                           out, using written English in exchange of             Brailled materials and displays, screen reader
                                                   Subpart A—General                                       notes often is ineffective because ASL syntax         software, optical readers, secondary auditory
                                                                                                           and vocabulary is dissimilar from English. By         programs (SAP), and accessible electronic
                                                   Section 35.104 Definitions.                             contrast, some commenters from professional           and information technology. Some
                                                                                                           medical associations sought more specific             commenters asked for more detailed
                                                   ‘‘1991 Standards’’ and ‘‘2004 ADAAG’’                   guidance on when notes are allowed,                   requirements for auxiliary aids for persons
                                                      The Department has included in the final             especially in the context of medical offices          with vision disabilities. The Department has
                                                   rule new definitions of both the ‘‘1991                 and health care situations.                           decided it will not make additional changes
                                                   Standards’’ and the ‘‘2004 ADAAG.’’ The term                Exchange of notes likely will be effective        to that provision at this time.
                                                   ‘‘1991 Standards’’ refers to the ADA                    in situations that do not involve substantial            Several comments suggested expanding the
                                                   Standards for Accessible Design, originally             conversation, for example, blood work for             auxiliary aids provision for persons who are
                                                   published on July 26, 1991, and republished             routine lab tests or regular allergy shots.           both deaf and blind, and in particular, to
                                                   as Appendix D to part 36. The term ‘‘2004               Video Interpreting Services (hereinafter              include in the list of auxiliary aids a new
                                                   ADAAG’’ refers to ADA Chapter 1, ADA                    referred to as ‘‘video remote interpreting            category, ‘‘support service providers (SSP),’’
                                                   Chapter 2, and Chapters 3 through 10 of the             services’’ or VRI) or an interpreter should be        which was described in comments as a
                                                   Americans with Disabilities Act and                     used when the matter involves greater                 navigator and communication facilitator. The
                                                   Architectural Barriers Act Accessibility                complexity, such as in situations requiring           Department believes that services provided
                                                   Guidelines, which were issued by the Access             communication of medical history or                   by communication facilitators are already
                                                   Board on July 23, 2004, 36 CFR 1191, app.               diagnoses, in conversations about medical             encompassed in the requirement to provide
                                                   B and D (2009), and which the Department                procedures and treatment decisions, or when           qualified interpreters. Moreover, the
                                                   has adopted in this final rule. These terms             giving instructions for care at home or               Department is concerned that as described by
                                                   are included in the definitions section for             elsewhere. In the Section-By-Section                  the commenters, the category of support
                                                   ease of reference.                                      Analysis of § 35.160 (Communications)                 service providers would include some
                                                                                                           below, the Department discusses in greater            services that would be considered personal
                                                   ‘‘2010 Standards’’                                                                                            services and that do not qualify as auxiliary
                                                                                                           detail the kinds of situations in which
                                                      The Department has added to the final rule           interpreters or captioning would be                   aids. Accordingly, the Department declines
                                                   a definition of the term ‘‘2010 Standards.’’            necessary. Additional guidance on this issue          to add this new category to the list at this
                                                   The term ‘‘2010 Standards’’ refers to the 2010          can be found in a number of agreements                time.
                                                   ADA Standards for Accessible Design, which              entered into with health-care providers and              Some commenters representing advocacy
                                                   consist of the 2004 ADAAG and the                       hospitals that are available on the                   organizations and individuals asked the
                                                   requirements contained in § 35.151.                     Department’s Web site at http://                      Department to explicitly require title II
                                                   ‘‘Auxiliary Aids and Services’’                         www.ada.gov.                                          entities to make any or all of the devices or
                                                                                                               In the NPRM, in paragraph (1) of the              technology available in all situations upon
                                                      In the NPRM, the Department proposed                                                                       the request of the person with a disability.
                                                   revisions to the definition of auxiliary aids           definition in § 35.104, the Department
                                                                                                           proposed replacing the term                           The Department recognizes that such devices
                                                   and services under § 35.104 to include                                                                        or technology may provide effective
                                                   several additional types of auxiliary aids that         ‘‘telecommunications devices for deaf
                                                                                                           persons (TDD)’’ with the term ‘‘text                  communication and in some circumstances
                                                   have become more readily available since the                                                                  may be effective for some persons, but the
                                                   promulgation of the 1991 title II regulation,           telephones (TTYs).’’ TTY has become the
                                                                                                           commonly accepted term and is consistent              Department does not intend to require that
                                                   and in recognition of new technology and                                                                      every entity covered by title II provide every
                                                   devices available in some places that may               with the terminology used by the Access
                                                                                                           Board in the 2004 ADAAG. Commenters                   device or all new technology at all times as
                                                   provide effective communication in some                                                                       long as the communication that is provided
                                                   situations.                                             representing advocates and persons with
                                                                                                                                                                 is as effective as communication with others.
                                                      The NPRM proposed adding an explicit                 disabilities expressed approval of the
                                                                                                                                                                 The Department recognized in the preamble
                                                   reference to written notes in the definition of         substitution of TTY for TDD in the proposed
                                                                                                                                                                 to the 1991 title II regulation that the list of
                                                   ‘‘auxiliary aids.’’ Although this policy was            regulation.
                                                                                                                                                                 auxiliary aids was ‘‘not an all-inclusive or
                                                   already enunciated in the Department’s 1993                 Commenters also expressed the view that
                                                                                                                                                                 exhaustive catalogue of possible or available
                                                   Title II Technical Assistance Manual at II–             the Department should expand paragraph (1)
                                                                                                                                                                 auxiliary aids or services. It is not possible
                                                   7.1000, the Department proposed inclusion               of the definition of auxiliary aids to include
                                                                                                                                                                 to provide an exhaustive list, and an attempt
                                                   in the regulation itself because some Title II          ‘‘TTY’s and other voice, text, and video-based
                                                                                                                                                                 to do so would omit the new devices that
                                                   entities do not understand that exchange of             telecommunications products and systems
                                                                                                                                                                 will become available with emerging
                                                   written notes using paper and pencil is an              such as videophones and captioned                     technology.’’ 28 CFR part 35, app. A at 560
                                                   available option in some circumstances. See             telephones.’’ The Department has considered           (2009). The Department continues to endorse
                                                   Department of Justice, The Americans with               these comments and has revised the                    that view; thus, the inclusion of a list of
                                                   Disabilities Act, Title II Technical Assistance         definition of ‘‘auxiliary aids’’ to include           examples of possible auxiliary aids in the
                                                   Manual Covering State and Local                         references to voice, text, and video-based            definition of ‘‘auxiliary aids’’ should not be
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                                                   Government Programs and Services (1993),                telecommunications products and systems,              read as a mandate for a title II entity to offer
                                                   available at http://www.ada.gov/                        as well as accessible electronic and                  every possible auxiliary aid listed in the
                                                   taman2.html. Comments from several                      information technology.                               definition in every situation.
                                                   disability advocacy organizations and                       In the NPRM, the Department also
                                                   individuals discouraged the Department from             proposed including a reference in paragraph           ‘‘Direct Threat’’
                                                   including the exchange of written notes in              (1) to a new technology, Video Interpreting              In Appendix A of the Department’s 1991
                                                   the list of available auxiliary aids in § 35.104.       Services (VIS). The reference remains in the          title II regulation, the Department included a
                                                   Advocates and persons with disabilities                 final rule. VIS is discussed in the Section-By-       detailed discussion of ‘‘direct threat’’ that,
                                                   requested explicit limits on the use of written         Section Analysis below in reference to                among other things, explained that ‘‘the



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                                                   principles established in § 36.208 of the               to make structural changes to existing                   The Department also has received
                                                   Department’s [title III] regulation’’ were              facilities to meet their program access               questions from public entities and
                                                   ‘‘applicable’’ as well to title II, insofar as          requirements.                                         individuals with mobility disabilities
                                                   ‘‘questions of safety are involved.’’ 28 CFR               The NPRM included the following                    concerning which mobility devices must be
                                                   part 35, app. A at 565 (2009). In the final             proposed definition of ‘‘existing facility.’’ ‘‘A     accommodated and under what
                                                   rule, the Department has included an explicit           facility that has been constructed and                circumstances. Indeed, there has been
                                                   definition of ‘‘direct threat’’ that is parallel to     remains in existence on any given date.’’ 73          litigation concerning the legal obligations of
                                                   the definition in the title III rule and placed         FR 34466, 34504 (June 17, 2008). The                  covered entities to accommodate individuals
                                                   it in the definitions section at § 35.104.              Department received a number of comments              with mobility disabilities who wish to use an
                                                   ‘‘Existing Facility’’                                   on this issue. The commenters urged the               electronic personal assistance mobility
                                                                                                           Department to clarify that all buildings              device (EPAMD), such as the Segway ® PT, as
                                                      The 1991 title II regulation provided                remain subject to the standards in effect at          a mobility device. The Department has
                                                   definitions for ‘‘new construction’’ at                 the time of their construction, that is, that a       participated in such litigation as amicus
                                                   § 35.151(a) and ‘‘alterations’’ at § 35.151(b). In      facility designed and constructed for first           curiae. See Ault v. Walt Disney World Co.,
                                                   contrast, the term ‘‘existing facility’’ was not        occupancy between January 26, 1992, and the           No. 6:07–cv–1785–Orl–31KRS, 2009 WL
                                                   explicitly defined, although it is used in the          effective date of the final rule is still             3242028 (M.D. Fla. Oct. 6, 2009). Much of the
                                                   statute and regulations for title II. See 42            considered ‘‘new construction’’ and that              litigation has involved shopping malls where
                                                   U.S.C. 12134(b); 28 CFR 35.150. It has been             alterations occurring between January 26,             businesses have refused to allow persons
                                                   the Department’s view that newly                        1992, and the effective date of the final rule        with disabilities to use EPAMDs. See, e.g.,
                                                   constructed or altered facilities are also              are still considered ‘‘alterations.’’                 McElroy v. Simon Property Group, No. 08–
                                                   existing facilities with continuing program                The final rule includes clarifying language        404 RDR, 2008 WL 4277716 (D. Kan. Sept.
                                                   access obligations, and that view is made               to ensure that the Department’s interpretation        15, 2008) (enjoining mall from prohibiting
                                                   explicit in this rule.                                  is accurately reflected. As established by this       the use of a Segway ® PT as a mobility device
                                                      The classification of facilities under the           rule, existing facility means a facility in           where an individual agrees to all of a mall’s
                                                   ADA is neither static nor mutually exclusive.           existence on any given date, without regard           policies for use of the device, except
                                                   Newly constructed or altered facilities are             to whether the facility may also be                   indemnification); Shasta Clark, Local Man
                                                   also existing facilities. A newly constructed           considered newly constructed or altered               Fighting Mall Over Right to Use Segway,
                                                   facility remains subject to the accessibility           under this part. Thus, this definition reflects       WATE 6 News, July 26, 2005, available at
                                                   standards in effect at the time of design and           the Department’s interpretation that public           http://www.wate.com/Global/
                                                   construction, with respect to those elements            entities have program access requirements
                                                                                                                                                                 story.asp?s=3643674 (last visited June 24,
                                                   for which, at that time, there were applicable          that are independent of, but may coexist
                                                                                                                                                                 2010).
                                                   ADA Standards. And at some point, the                   with, requirements imposed by new
                                                                                                                                                                    In response to questions and complaints
                                                   facility may undergo alterations, which are             construction or alteration requirements in
                                                                                                                                                                 from individuals with disabilities and
                                                   subject to the alterations requirements in              those same facilities.
                                                                                                                                                                 covered entities concerning which mobility
                                                   effect at the time. See § 35.151(b)–(c). The            ‘‘Housing at a Place of Education’’
                                                   fact that the facility is also an existing facility                                                           devices must be accommodated and under
                                                   does not relieve the public entity of its                  The Department has added a new                     what circumstances, the Department began
                                                   obligations under the new construction and              definition to § 35.104, ‘‘housing at a place of       developing a framework to address the use of
                                                   alterations requirements in this part.                  education,’’ to clarify the types of educational      unique mobility devices, concerns about
                                                      For example, a facility constructed or               housing programs that are covered by this             their safety, and the parameters for the
                                                   altered after the effective date of the original        title. This section defines ‘‘housing at a place      circumstances under which these devices
                                                   title II regulations but prior to the effective         of education’’ as ‘‘housing operated by or on         must be accommodated. As a result, the
                                                   date of the revised title II regulation and             behalf of an elementary, secondary,                   Department’s NPRM proposed two new
                                                   Standards, must have been built or altered in           undergraduate, or postgraduate school, or             approaches to mobility devices. First, the
                                                   compliance with the Standards (or UFAS) in              other place of education, including                   Department proposed a two-tiered mobility
                                                                                                           dormitories, suites, apartments, or other             device definition that defined the term
                                                   effect at that time, in order to be in
                                                                                                           places of residence.’’ This definition does not       ‘‘wheelchair’’ separately from ‘‘other power-
                                                   compliance with the ADA. In addition, a
                                                                                                           apply to social service programs that                 driven mobility device.’’ Second, the
                                                   ‘‘newly constructed’’ facility or ‘‘altered’’
                                                                                                           combine residential housing with social               Department proposed requirements to allow
                                                   facility is also an ‘‘existing facility’’ for
                                                                                                           services, such as a residential job training          the use of devices in each definitional
                                                   purposes of application of the title II program
                                                                                                           program.                                              category. In § 35.137(a), the NPRM proposed
                                                   accessibility requirements. Once the 2010
                                                   Standards take effect, they will become the             ‘‘Other Power-Driven Mobility Device’’ and            that wheelchairs and manually-powered
                                                   new reference point for determining the                 ‘‘Wheelchair’’                                        mobility aids used by individuals with
                                                   program accessibility obligations of all                   Because relatively few individuals with            mobility disabilities shall be permitted in any
                                                   existing facilities. This is because the ADA            disabilities were using nontraditional                areas open to pedestrian use. Section
                                                   contemplates that as our knowledge and                  mobility devices in 1991, there was no                35.137(b) of the NPRM provided that a public
                                                   understanding of accessibility advances and             pressing need for the 1991 title II regulation        entity ‘‘shall make reasonable modifications
                                                   evolves, this knowledge will be incorporated            to define the terms ‘‘wheelchair’’ or ‘‘other         in its policies, practices, and procedures to
                                                   into and result in increased accessibility in           power-driven mobility device,’’ to expound            permit the use of other power-driven
                                                   the built environment. Under title II, this goal        on what would constitute a reasonable                 mobility devices by individuals with
                                                   is accomplished through the statute’s                   modification in policies, practices, or               disabilities, unless the public entity can
                                                   program access framework. While newly                   procedures under § 35.130(b)(7), or to set            demonstrate that the use of the device is not
                                                   constructed or altered facilities must meet             forth within that section specific                    reasonable or that its use will result in a
                                                   the accessibility standards in effect at the            requirements for the accommodation of                 fundamental alteration of the public entity’s
                                                   time, the fact that these facilities are also           mobility devices. Since the issuance of the           service, program, or activity.’’ 73 FR 34466,
                                                   existing facilities ensures that the                    1991 title II regulation, however, the choices        34504 (June 17, 2008).
                                                   determination of whether a program is                   of mobility devices available to individuals             The Department sought public comment
                                                   accessible is not frozen at the time of                 with disabilities have increased dramatically.        with regard to whether these steps would, in
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                                                   construction or alteration. Program access              The Department has received complaints                fact, achieve clarity on these issues. Toward
                                                   may require consideration of potential                  about and has become aware of situations              this end, the Department’s NPRM asked
                                                   barriers to access that were not recognized as          where individuals with mobility disabilities          several questions relating to the definitions of
                                                   such at the time of construction or alteration,         have utilized devices that are not designed           ‘‘wheelchair,’’ ‘‘other power-driven mobility
                                                   including, but not limited to, the elements             primarily for use by an individual with a             device,’’ and ‘‘manually-powered mobility
                                                   that are first covered in the 2010 Standards,           mobility disability, including the Segway ®           aids’’; the best way to categorize different
                                                   as that term is defined in § 35.104. Adoption           Personal Transporter (Segway ® PT), golf              classes of mobility devices; the types of
                                                   of the 2010 Standards establishes a new                 cars, all-terrain vehicles (ATVs), and other          devices that should be included in each
                                                   reference point for title II entities that choose       locomotion devices.                                   category; and the circumstances under which



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



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                                                   56188        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

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



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                                                   off the ground by wheels on each side, grasps           wheelchairs do not. See Rachel Metz,                  Segway® PT as ‘‘mobility devices’’ and
                                                   a T-shaped handle, and steers the device                Disabled Embrace Segway, New York Times,              excluded fuel-powered devices from that
                                                   similarly to a bicycle. Most Segway® PTs can            Oct. 14, 2004. Commenters specifically cited          definition.
                                                   travel up to 121⁄2 miles per hour, compared             pressure relief, reduced spasticity, increased           Many disability advocacy and nonprofit
                                                   to the average pedestrian walking speed of              stamina, and improved respiratory,                    commenters did not support the inclusion of
                                                   three to four miles per hour and the                    neurologic, and muscular health as                    the Segway® PT in the definition of
                                                   approximate maximum speed for power-                    secondary medical benefits from being able            ‘‘wheelchair.’’ Paramount to these
                                                   operated wheelchairs of six miles per hour.             to stand.                                             commenters was the maintenance of existing
                                                   In a study of trail and other non-motorized                Other arguments for including the                  protections for wheelchair users. Because
                                                   transportation users including EPAMDs, the              Segway® PT in the definition of ‘‘wheelchair’’        there was unanimous agreement that
                                                   Federal Highway Administration (FHWA)                   were based on commenters’ views that the              wheelchair use rarely, if ever, may be
                                                   found that the eye height of individuals using          Segway® PT offers benefits not provided by            restricted, these commenters strongly favored
                                                   EPAMDs ranged from approximately 69 to 80               wheelchairs and mobility scooters, including          categorizing wheelchairs separately from the
                                                   inches. See Federal Highway Administration,             its intuitive response to body movement,              Segway® PT and other power-driven mobility
                                                   Characteristics of Emerging Road and Trail              ability to operate with less coordination and         devices and applying the intended-use
                                                   Users and Their Safety (Oct. 14, 2004),                 dexterity than is required for many                   determinant to assign the devices to either
                                                   available at http://www.tfhrc.gov/safety/               wheelchairs and mobility scooters, and                category. They indicated that while they
                                                   pubs/04103 (last visited June 24, 2010). Thus,          smaller footprint and turning radius as               support the greatest degree of access in
                                                   the Segway® PT can operate at much greater              compared to most wheelchairs and mobility             public entities for all persons with
                                                   speeds than wheelchairs, and the average                scooters. Several commenters mentioned                disabilities who require the use of mobility
                                                   user stands much taller than most wheelchair            improved visibility, either due to the                devices, they recognize that under certain
                                                   users.                                                  Segway® PT’s raised platform or simply by             circumstances, allowing the use of other
                                                      The Segway® PT has been the subject of               virtue of being in a standing position. And           power-driven mobility devices would result
                                                   debate among users, pedestrians, disability             finally, some commenters advocated for the            in a fundamental alteration of programs,
                                                   advocates, State and local governments,                 inclusion of the Segway® PT simply based on           services, or activities, or run counter to
                                                   businesses, and bicyclists. The fact that the           civil rights arguments and the empowerment            legitimate safety requirements necessary for
                                                   Segway® PT is not designed primarily for use            and self-esteem obtained from having the              the safe operation of a public entity. While
                                                   by individuals with disabilities, nor used              power to select the mobility device of choice.        these groups supported categorizing the
                                                   primarily by persons with disabilities,                    Many commenters, regardless of their               Segway® PT as an ‘‘other power-driven
                                                   complicates the question of to what extent              position on whether to include the Segway®            mobility device,’’ they universally noted that
                                                   individuals with disabilities should be                 PT in the definition of ‘‘wheelchair,’’ noted         in their view, because the Segway® PT does
                                                   allowed to operate them in areas and                    that the Segway® PT’s safety record is as             not present environmental concerns and is as
                                                   facilities where other power-driven mobility            good as, if not better, than the record for           safe to use as, if not safer than, a wheelchair,
                                                   devices are not allowed. Those who question             wheelchairs and mobility scooters.                    it should be accommodated in most
                                                   the use of the Segway® PT in pedestrian                    Most environmental, transit system, and            circumstances.
                                                   areas argue that the speed, size, and                   government commenters were opposed to                    The Department has considered all the
                                                   operating features of the devices make them             including the Segway® PT in the definition            comments and has concluded that it should
                                                   too dangerous to operate alongside                      of ‘‘wheelchair’’ but were supportive of its          not include the Segway® PT in the definition
                                                   pedestrians and wheelchair users.                       inclusion as an ‘‘other power-driven mobility         of ‘‘wheelchair.’’ The final rule provides that
                                                      Comments regarding whether to include                device.’’ Their concerns about including the          the test for categorizing a device as a
                                                   the Segway® PT in the definition of                     Segway® PT in the definition of ‘‘wheelchair’’        wheelchair or an other power-driven
                                                   ‘‘wheelchair’’ were, by far, the most numerous          had to do with the safety of the operators of         mobility device is whether the device is
                                                   received in the category of comments                    these devices (e.g., height clearances on             designed primarily for use by individuals
                                                   regarding wheelchairs and other power-                  trains and sloping trails in parks) and of            with mobility disabilities. Mobility scooters
                                                   driven mobility devices. Significant numbers            pedestrians, particularly in confined and             are included in the definition of ‘‘wheelchair’’
                                                   of veterans with disabilities, individuals with         crowded facilities or in settings where               because they are designed primarily for users
                                                   multiple sclerosis, and those advocating on             motorized devices might be unexpected; the            with mobility disabilities. However, because
                                                   their behalf made concise statements of                 potential harm to the environment; the                the current generation of EPAMDs, including
                                                   general support for the inclusion of the                additional administrative, insurance,                 the Segway® PT, was designed for
                                                   Segway® PT in the definition of                         liability, and defensive litigation costs;            recreational users and not primarily for use
                                                   ‘‘wheelchair.’’ Two veterans offered extensive          potentially detrimental impacts on the                by individuals with mobility disabilities, the
                                                   comments on the topic, along with a few                 environment and cultural and natural                  Department has decided to continue its
                                                   advocacy and nonprofit groups and                       resources; and the impracticality of                  approach of excluding EPAMDs from the
                                                   individuals with disabilities for whom sitting          accommodating such devices in public                  definition of ‘‘wheelchair’’ and including
                                                   is uncomfortable or impossible.                         transportation settings.                              them in the definition of ‘‘other power-driven
                                                      While there may be legitimate safety issues             Other environmental, transit system, and           mobility device.’’ Although EPAMDs, such as
                                                   for EPAMD users and bystanders in some                  government commenters would have banned               the Segway® PT, are not included in the
                                                   circumstances, EPAMDs and other non-                    all fuel-powered devices as mobility devices.         definition of a ‘‘wheelchair,’’ public entities
                                                   traditional mobility devices can deliver real           In addition, these commenters would have              must assess whether they can make
                                                   benefits to individuals with disabilities.              classified non-motorized devices as                   reasonable modifications to permit
                                                   Among the reasons given by commenters to                ‘‘wheelchairs’’ and would have categorized            individuals with mobility disabilities to use
                                                   include the Segway® PT in the definition of             motorized devices, such as the Segway® PT,            such devices on their premises. The
                                                   ‘‘wheelchair’’ were that the Segway® PT is              battery-operated wheelchairs, and mobility            Department recognizes that the Segway® PT
                                                   well-suited for individuals with particular             scooters as ‘‘other power-driven mobility             provides many benefits to those who use
                                                   conditions that affect mobility including               devices.’’ In support of this position, some of       them as mobility devices, including a
                                                   multiple sclerosis, Parkinson’s disease,                these commenters argued that because their            measure of privacy with regard to the nature
                                                   chronic obstructive pulmonary disease,                  equipment and facilities have been designed           of one’s particular disability, and believes
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                                                   amputations, spinal cord injuries, and other            to comply with the dimensions of the                  that in the vast majority of circumstances, the
                                                   neurological disabilities, as well as                   ‘‘common wheelchair’’ upon which the                  application of the factors described in
                                                   functional limitations, such as gait limitation,        ADAAG is based, any device that is larger             § 35.137 for providing access to other-
                                                   inability to sit or discomfort in sitting, and          than the prototype wheelchair would be                powered mobility devices will result in the
                                                   diminished stamina issues. Such individuals             misplaced in the definition of ‘‘wheelchair.’’        admission of the Segway® PT.
                                                   often find that EPAMDs are more comfortable                Still others in this group of commenters              Treatment of ‘‘manually-powered mobility
                                                   and easier to use than more traditional                 wished for only a single category of mobility         aids.’’ The Department’s NPRM did not
                                                   mobility devices and assist with balance,               devices and would have included                       define the term ‘‘manually-powered mobility
                                                   circulation, and digestion in ways that                 wheelchairs, mobility scooters, and the               aids.’’ Instead, the NPRM included a non-



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                                                   exhaustive list of examples in § 35.137(a).             expressed at least some hesitation about the          interpreter who uses American Sign
                                                   The NPRM queried whether the Department                 inclusion of fuel-powered mobility devices in         Language (ASL) is not necessarily qualified
                                                   should maintain this approach to manually-              the definition. While virtually all of these          to interpret orally. In addition, someone with
                                                   powered mobility aids or whether it should              commenters noted that a blanket exclusion of          only a rudimentary familiarity with sign
                                                   adopt a more formal definition.                         any device that falls under the definition of         language or finger spelling is not qualified,
                                                      Only a few commenters addressed                      ‘‘other power-driven mobility device’’ would          nor is someone who is fluent in sign language
                                                   ‘‘manually-powered mobility aids.’’ Virtually           violate basic civil rights concepts, they also        but unable to translate spoken
                                                   all commenters were in favor of maintaining             specifically stated that certain devices,             communication into ASL or to translate
                                                   a non-exhaustive list of examples of                    particularly, off-highway vehicles, cannot be         signed communication into spoken words.
                                                   ‘‘manually-powered mobility aids’’ rather               permitted in certain circumstances. They also            As further explained, different situations
                                                   than adopting a definition of the term. Of              made a distinction between the Segway® PT             will require different types of interpreters.
                                                   those who commented, a few sought                       and other power-driven mobility devices,              For example, an oral interpreter who has
                                                   clarification of the term ‘‘manually-powered.’’         noting that the Segway® PT should be                  special skill and training to mouth a
                                                   One commenter suggested that the term be                accommodated in most circumstances                    speaker’s words silently for individuals who
                                                   changed to ‘‘human-powered.’’ Other                     because it satisfies the safety and                   are deaf or hard of hearing may be necessary
                                                   commenters requested that the Department                environmental elements of the policy                  for an individual who was raised orally and
                                                   include ordinary strollers in the non-                  analysis. These commenters indicated that             taught to read lips or was diagnosed with
                                                   exhaustive list of ‘‘manually-powered                   they agree that other power-driven mobility           hearing loss later in life and does not know
                                                   mobility aids.’’ Since strollers are not devices        devices must be assessed, particularly as to          sign language. An individual who is deaf or
                                                   designed primarily for individuals with                 their environmental impact, before they are           hard of hearing may need an oral interpreter
                                                   mobility disabilities, the Department does              accommodated.                                         if the speaker’s voice is unclear, if there is
                                                   not consider them to be manually-powered                   Although many commenters had                       a quick-paced exchange of communication
                                                   mobility aids; however, strollers used in the           reservations about the inclusion of fuel-             (e.g., in a meeting), or when the speaker does
                                                   context of transporting individuals with                powered devices in the definition of other            not directly face the individual who is deaf
                                                   disabilities are subject to the same                    power-driven mobility devices, the                    or hard of hearing. A cued-speech interpreter
                                                   assessment required by the ADA’s title II               Department does not want the definition to            functions in the same manner as an oral
                                                   reasonable modification standards at                    be so narrow that it would foreclose the              interpreter except that he or she also uses a
                                                   § 35.130(b)(7). The Department believes that            inclusion of new technological developments           hand code or cue to represent each speech
                                                   because the existing approach is clear and              (whether powered by fuel or by some other             sound.
                                                   understood easily by the public, no formal              means). It is for this reason that the                   The Department received many comments
                                                   definition of the term ‘‘manually-powered               Department has maintained the phrase ‘‘any            regarding the proposed modifications to the
                                                   mobility aids’’ is required.                            mobility device designed to operate in areas          definition of ‘‘interpreter.’’ Many commenters
                                                      Definition of ‘‘other power-driven mobility          without defined pedestrian routes’’ in the            requested that the Department include within
                                                   device.’’ The Department’s NPRM defined the             final rule’s definition of other power-driven         the definition a requirement that interpreters
                                                   term ‘‘other power-driven mobility device’’ in          mobility devices. The Department believes             be certified, particularly if they reside in a
                                                   § 35.104 as ‘‘any of a large range of devices           that the limitations provided by                      State that licenses or certifies interpreters.
                                                   powered by batteries, fuel, or other engines—           ‘‘fundamental alteration’’ and the ability to         Other commenters opposed a certification
                                                   whether or not designed solely for use by               impose legitimate safety requirements will            requirement as unduly limiting, noting that
                                                   individuals with mobility impairments—that              likely prevent the use of fuel and combustion         an interpreter may well be qualified even if
                                                   are used by individuals with mobility                   engine-driven devices indoors, as well as in          that same interpreter is not certified. These
                                                   impairments for the purpose of locomotion,              outdoor areas with heavy pedestrian traffic.          commenters noted the absence of nationwide
                                                   including golf cars, bicycles, electronic               The Department notes, however, that in the            standards or universally accepted criteria for
                                                   personal assistance mobility devices                    future, technological developments may                certification.
                                                   (EPAMDs), or any mobility aid designed to               result in the production of safe fuel-powered            On review of this issue, the Department
                                                   operate in areas without defined pedestrian             mobility devices that do not pose                     has decided against imposing a certification
                                                   routes.’’ 73 FR 34466, 34504 (June 17, 2008).           environmental and safety concerns. The final          requirement under the ADA. It is sufficient
                                                      Nearly all environmental, transit systems,           rule allows consideration to be given as to           under the ADA that the interpreter be
                                                   and government commenters who supported                 whether the use of a fuel-powered device              qualified. However, as the Department stated
                                                   the two-tiered concept of mobility devices              would create a substantial risk of serious            in the original preamble, this rule does not
                                                   said that the Department’s definition of                harm to the environment or natural or                 invalidate or limit State or local laws that
                                                   ‘‘other power-driven mobility device’’ is               cultural resources, and to whether the use of         impose standards for interpreters that are
                                                   overbroad because it includes fuel-powered              such a device conflicts with Federal land             equal to or more stringent than those
                                                   devices. These commenters sought a ban on               management laws or regulations; this aspect           imposed by this definition. See 28 CFR part
                                                   fuel-powered devices in their entirety                  of the final rule will further limit the              35, app. A at 566 (2009). For instance, the
                                                   because they believe they are inherently                inclusion of fuel-powered devices where they          definition would not supersede any
                                                                                                           are not appropriate. Consequently, the                requirement of State law for use of a certified
                                                   dangerous and pose environmental and
                                                                                                           Department has maintained fuel-powered                interpreter in court proceedings.
                                                   safety concerns. They also argued that
                                                                                                           devices in the definition of ‘‘other power-
                                                   permitting the use of many of the                                                                                With respect to the proposed additions to
                                                                                                           driven mobility device.’’ The Department has
                                                   contemplated other power-driven mobility                                                                      the rule, most commenters supported the
                                                                                                           also added language to the definition of
                                                   devices, fuel-powered ones especially, would                                                                  expansion of the list of qualified interpreters,
                                                                                                           ‘‘other power-driven mobility device’’ to
                                                   fundamentally alter the programs, services,                                                                   and some advocated for the inclusion of
                                                                                                           reiterate that the definition does not apply to
                                                   or activities of public entities.                                                                             other types of interpreters on the list as well,
                                                                                                           Federal wilderness areas, which are not
                                                      Advocacy, nonprofit, and several                                                                           such as deaf-blind interpreters, certified deaf
                                                                                                           covered by title II of the ADA; the use of
                                                   individual commenters supported the                                                                           interpreters, and speech-to-speech
                                                                                                           wheelchairs in such areas is governed by
                                                   definition of ‘‘other power-driven mobility                                                                   interpreters. As these commenters explained,
                                                                                                           section 508(c)(2) of the ADA, 42 U.S.C.
                                                   device’’ because it allows new technologies to                                                                deaf-blind interpreters are interpreters who
                                                                                                           12207(c)(2).
                                                   be added in the future, maintains the existing                                                                have specialized skills and training to
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                                                   legal protections for wheelchairs, and                  ‘‘Qualified Interpreter’’                             interpret for individuals who are deaf and
                                                   recognizes that some devices, particularly the             In the NPRM, the Department proposed               blind; certified deaf interpreters are deaf or
                                                   Segway® PT, which are not designed                      adding language to the definition of                  hard of hearing interpreters who work with
                                                   primarily for individuals with mobility                 ‘‘qualified interpreter’’ to clarify that the term    hearing sign language interpreters to meet the
                                                   disabilities, have beneficial uses for                  includes, but is not limited to, sign language        specific communication needs of deaf
                                                   individuals with mobility disabilities.                 interpreters, oral interpreters, and cued-            individuals; and speech-to-speech
                                                   Despite support for the definition of ‘‘other           speech interpreters. As the Department                interpreters have special skill and training to
                                                   power-driven mobility device,’’ however,                explained, not all interpreters are qualified         interpret for individuals who have speech
                                                   most advocacy and nonprofit commenters                  for all situations. For example, a qualified          disabilities.



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56191

                                                      The list of interpreters in the definition of        video remote interpreting (VRI) service.              common use and understanding of those
                                                   qualified interpreter is illustrative, and the          Given that the Department has included in             terms from standard English dictionaries.
                                                   Department does not believe it necessary or             this rule both a definition of VRI services and       Thus, the definition of ‘‘qualified reader’’ has
                                                   appropriate to attempt to provide an                    standards that such services must satisfy,            not been changed from that contained in the
                                                   exhaustive list of qualified interpreters.              such an addition to the definition of qualified       NPRM. The final rule defines ‘‘qualified
                                                   Accordingly, the Department has decided not             interpreter is appropriate.                           reader’’ to mean ‘‘a person who is able to read
                                                   to expand the proposed list. However, if a                 After consideration of all relevant                effectively, accurately, and impartially using
                                                   deaf and blind individual needs interpreter             information submitted during the public               any necessary specialized vocabulary.’’
                                                   services, an interpreter who is qualified to            comment period, the Department has                    ‘‘Service Animal’’
                                                   handle the needs of that individual may be              modified the definition from that initially
                                                   required. The guiding criterion is that the             proposed in the NPRM. The final definition               Although there is no specific language in
                                                   public entity must provide appropriate                  now states that ‘‘[q]ualified interpreter means       the 1991 title II regulation concerning service
                                                   auxiliary aids and services to ensure effective         an interpreter who, via a video remote                animals, title II entities have the same legal
                                                   communication with the individual.                      interpreting (VRI) service or an on-site              obligations as title III entities to make
                                                   Commenters also suggested various                       appearance, is able to interpret effectively,         reasonable modifications in policies,
                                                   definitions for the term ‘‘cued-speech                  accurately, and impartially, both receptively         practices, or procedures to allow service
                                                   interpreters,’’ and different descriptions of           and expressively, using any necessary                 animals when necessary in order to avoid
                                                   the tasks they performed. After reviewing the           specialized vocabulary. Qualified interpreters        discrimination on the basis of disability,
                                                   various comments, the Department has                    include, for example, sign language                   unless the entity can demonstrate that
                                                   determined that it is more accurate and                 interpreters, oral transliterators, and cued-         making the modifications would
                                                   appropriate to refer to such individuals as             language transliterators.’’                           fundamentally alter the nature of the service,
                                                   ‘‘cued-language transliterators.’’ Likewise, the                                                              program, or activity. See 28 CFR 35.130(b)(7).
                                                                                                           ‘‘Qualified Reader’’                                  The 1991 title III regulation, 28 CFR 36.104,
                                                   Department has changed the term ‘‘oral
                                                                                                              The 1991 title II regulation identifies a          defines a ‘‘service animal’’ as ‘‘any guide dog,
                                                   interpreters’’ to ‘‘oral transliterators.’’ These
                                                                                                           qualified reader as an auxiliary aid, but did         signal dog, or other animal individually
                                                   two changes have been made to distinguish
                                                                                                           not define the term. See 28 CFR 35.104(2).            trained to do work or perform tasks for the
                                                   between sign language interpreters, who
                                                                                                           Based upon the Department’s investigation of          benefit of an individual with a disability,
                                                   translate one language into another language
                                                                                                           complaints alleging that some entities have           including, but not limited to, guiding
                                                   (e.g., ASL to English and English to ASL),
                                                                                                           provided ineffective readers, the Department          individuals with impaired vision, alerting
                                                   from transliterators who interpret within the
                                                                                                           proposed in the NPRM to define ‘‘qualified            individuals with impaired hearing to
                                                   same language between deaf and hearing
                                                                                                           reader’’ similarly to ‘‘qualified interpreter’’ to    intruders or sounds, providing minimal
                                                   individuals. A cued-language transliterator is
                                                                                                           ensure that entities select qualified                 protection or rescue work, pulling a
                                                   an interpreter who has special skill and
                                                                                                           individuals to read an examination or other           wheelchair, or fetching dropped items.’’
                                                   training in the use of the Cued Speech system                                                                 Section 36.302(c)(1) of the 1991 title III
                                                                                                           written information in an effective, accurate,
                                                   of handshapes and placements, along with                                                                      regulation requires that ‘‘[g]enerally, a public
                                                                                                           and impartial manner. This proposal was
                                                   non-manual information, such as facial                  suggested in order to make clear to public            accommodation shall modify policies,
                                                   expression and body language, to show                   entities that a failure to provide a qualified        practices, or procedures to permit the use of
                                                   auditory information visually, including                reader to a person with a disability may              a service animal by an individual with a
                                                   speech and environmental sounds. An oral                constitute a violation of the requirement to          disability.’’ Section 36.302(c)(2) of the 1991
                                                   transliterator is an interpreter who has                provide appropriate auxiliary aids and                title III regulation states that ‘‘a public
                                                   special skill and training to mouth a                   services.                                             accommodation [is not required] to supervise
                                                   speaker’s words silently for individuals who               The Department received comments                   or care for a service animal.’’
                                                   are deaf or hard of hearing. While the                  supporting inclusion in the regulation of a              The Department has issued guidance and
                                                   Department included definitions for ‘‘cued-             definition of a ‘‘qualified reader.’’ Some            provided technical assistance and
                                                   speech interpreter’’ and ‘‘oral interpreter’’ in        commenters suggested the Department add to            publications concerning service animals
                                                   the regulatory text proposed in the NPRM,               the definition a requirement prohibiting the          since the 1991 regulations became effective.
                                                   the Department has decided that it is                   use of a reader whose accent, diction, or             In the NPRM, the Department proposed to
                                                   unnecessary to include such definitions in              pronunciation makes full comprehension of             modify the definition of service animal,
                                                   the text of the final rule.                             material being read difficult. Another                added the definition to title II, and asked for
                                                      Many commenters questioned the                       commenter requested that the Department               public input on several issues related to the
                                                   proposed deletion of the requirement that a             include a requirement that the reader ‘‘will          service animal provisions of the title II
                                                   qualified interpreter be able to interpret both         follow the directions of the person for whom          regulation: whether the Department should
                                                   receptively and expressively, noting the                he or she is reading.’’ Commenters also               clarify the phrase ‘‘providing minimal
                                                   importance of both these skills. Commenters             requested that the Department define                  protection’’ in the definition or remove it;
                                                   stated that this phrase was carefully crafted           ‘‘accurately’’ and ‘‘effectively’’ as used in this    whether there are any circumstances where
                                                   in the original regulation to make certain that         definition.                                           a service animal ‘‘providing minimal
                                                   interpreters both (1) are capable of                       While the Department believes that its             protection’’ would be appropriate or
                                                   understanding what a person with a                      proposed regulatory definition adequately             expected; whether certain species should be
                                                   disability is saying and (2) have the skills            addresses these concerns, the Department              eliminated from the definition of ‘‘service
                                                   needed to convey information back to that               emphasizes that a reader, in order to be              animal,’’ and, if so, which types of animals
                                                   individual. These are two very different skill          ‘‘qualified,’’ must be skilled in reading the         should be excluded; whether ‘‘common
                                                   sets and both are equally important to                  language and subject matter and must be able          domestic animal’’ should be part of the
                                                   achieve effective communication. For                    to be easily understood by the individual             definition; and whether a size or weight
                                                   example, in a medical setting, a sign language          with the disability. For example, if a reader         limitation should be imposed for common
                                                   interpreter must have the necessary skills to           is reading aloud the questions for a college          domestic animals even if the animal satisfies
                                                   understand the grammar and syntax used by               microbiology examination, that reader, in             the ‘‘common domestic animal’’ part of the
                                                   an ASL user (receptive skills) and the ability          order to be qualified, must know the proper           NPRM definition.
                                                   to interpret complicated medical                        pronunciation of scientific terminology used             The Department received extensive
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                                                   information—presented by medical staff in               in the text, and must be sufficiently articulate      comments on these issues, as well as requests
                                                   English—back to that individual in ASL                  to be easily understood by the individual             to clarify the obligations of State and local
                                                   (expressive skills). The Department agrees              with a disability for whom he or she is               government entities to accommodate
                                                   and has put the phrase ‘‘both receptively and           reading. In addition, the terms ‘‘effectively’’       individuals with disabilities who use service
                                                   expressively’’ back in the definition.                  and ‘‘accurately’’ have been successfully used        animals, and has modified the final rule in
                                                      Several advocacy groups suggested that the           and understood in the Department’s existing           response. In the interests of avoiding
                                                   Department make clear in the definition of              definition of ‘‘qualified interpreter’’ since         unnecessary repetition, the Department has
                                                   qualified interpreter that the interpreter may          1991 without specific regulatory definitions.         elected to discuss the issues raised in the
                                                   appear either on-site or remotely using a               Instead, the Department has relied upon the           NPRM questions about service animals and



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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                            56193

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



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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                              56195

                                                   military to use emotional support animals.              disabilities to detect the onset of psychiatric       decided to retain the term ‘‘service animal’’ in
                                                   They asserted that a significant number of              episodes and ameliorate their effects. Tasks          the final rule. While some agencies, like
                                                   service members returning from active                   performed by psychiatric service animals              HUD, use the term ‘‘assistance animal,’’
                                                   combat duty have adjustment difficulties due            may include reminding the handler to take             ‘‘assistive animal,’’ or ‘‘support animal,’’ these
                                                   to combat, sexual assault, or other traumatic           medicine, providing safety checks or room             terms are used to denote a broader category
                                                   experiences while on active duty.                       searches for persons with PTSD, interrupting          of animals than is covered by the ADA. The
                                                   Commenters noted that some current or                   self-mutilation, and removing disoriented             Department has decided that changing the
                                                   former members of the military service have             individuals from dangerous situations.                term used in the final rule would create
                                                   been prescribed animals for conditions such                The difference between an emotional                confusion, particularly in view of the broader
                                                   as PTSD. One commenter stated that service              support animal and a psychiatric service              parameters for coverage under the FHAct, cf.,
                                                   women who were sexually assaulted while in              animal is the work or tasks that the animal           preamble to HUD’s Final Rule for Pet
                                                   the military use emotional support animals to           performs. Traditionally, service dogs worked          Ownership for the Elderly and Persons with
                                                   help them feel safe enough to step outside              as guides for individuals who were blind or           Disabilities, 73 FR 63834–38 (Oct. 27, 2008);
                                                   their homes. The Department recognizes that             had low vision. Since the original regulation         HUD Handbook No. 4350.3 Rev–1, Chapter 2,
                                                   many current and former members of the                  was promulgated, service animals have been            Occupancy Requirements of Subsidized
                                                   military have disabilities as a result of               trained to assist individuals with many               Multifamily Housing Programs (June 2007),
                                                   service-related injuries that may require               different types of disabilities.                      available at http://www.hud.gov/offices/adm/
                                                   emotional support and that such individuals                In the final rule, the Department has              hudclips/handbooks/hsgh/4350.3 (last
                                                   can benefit from the use of an emotional                retained its position on the exclusion of             visited June 24, 2010). Moreover, as
                                                   support animal and could use such animal in             emotional support animals from the                    discussed above, the Department’s definition
                                                   their home under the FHAct. However,                    definition of ‘‘service animal.’’ The definition      of ‘‘service animal’’ in the title II final rule
                                                   having carefully weighed the issues, the                states that ‘‘[t]he provision of emotional            does not affect the rights of individuals with
                                                   Department believes that its final rule                 support, well-being, comfort, or                      disabilities who use assistance animals in
                                                   appropriately addresses the balance of issues           companionship, * * * do[es] not constitute            their homes under the FHAct or who use
                                                   and concerns of both the individual with a              work or tasks for the purposes of this                ‘‘emotional support animals’’ that are covered
                                                   disability and the public entity. The                   definition.’’ The Department notes, however,          under the ACAA and its implementing
                                                   Department also notes that nothing in this              that the exclusion of emotional support               regulations. See 14 CFR 382.7 et seq.; see also
                                                   part prohibits a public entity from allowing            animals from coverage in the final rule does          Department of Transportation, Guidance
                                                   current or former military members or                   not mean that individuals with psychiatric or         Concerning Service Animals in Air
                                                   anyone else with disabilities to utilize                mental disabilities cannot use service                Transportation, 68 FR 24874, 24877 (May 9,
                                                   emotional support animals if it wants to do             animals that meet the regulatory definition.          2003) (discussing accommodation of service
                                                   so.                                                     The final rule defines service animal as              animals and emotional support animals on
                                                      Commenters asserted the view that if an              follows: ‘‘[s]ervice animal means any dog that        aircraft).
                                                   animal’s ‘‘mere presence’’ legitimately                 is individually trained to do work or perform         ‘‘Video Remote Interpreting’’ (VRI) Services
                                                   provides such benefits to an individual with            tasks for the benefit of an individual with a            In the NPRM, the Department proposed
                                                   a disability and if those benefits are                  disability, including a physical, sensory,            adding Video Interpreting Services (VIS) to
                                                   necessary to provide equal opportunity given            psychiatric, intellectual, or other mental            the list of auxiliary aids available to provide
                                                   the facts of the particular disability, then            disability.’’ This language simply clarifies the      effective communication described in
                                                   such an animal should qualify as a ‘‘service            Department’s longstanding position.                   § 35.104. In the preamble to the NPRM, VIS
                                                   animal.’’ Commenters noted that the focus                  The Department’s position is based on the          was defined as ‘‘a technology composed of a
                                                   should be on the nature of a person’s                   fact that the title II and title III regulations      video phone, video monitors, cameras, a
                                                   disability, the difficulties the disability may         govern a wider range of public settings than          high-speed Internet connection, and an
                                                   impose and whether the requested                        the housing and transportation settings for           interpreter. The video phone provides video
                                                   accommodation would legitimately address                which the Department of Housing and Urban             transmission to a video monitor that permits
                                                   those difficulties, not on evaluating the               Development (HUD) and DOT regulations                 the individual who is deaf or hard of hearing
                                                   animal involved. The Department                         allow emotional support animals or comfort            to view and sign to a video interpreter (i.e.,
                                                   understands this approach has benefitted                animals. The Department recognizes that               a live interpreter in another location), who
                                                   many individuals under the FHAct and                    there are situations not governed by the title        can see and sign to the individual through a
                                                   analogous State law provisions, where the               II and title III regulations, particularly in the     camera located on or near the monitor, while
                                                   presence of animals poses fewer health and              context of residential settings and                   others can communicate by speaking. The
                                                   safety issues, and where emotional support              transportation, where there may be a legal            video monitor can display a split screen of
                                                   animals provide assistance that is unique to            obligation to permit the use of animals that          two live images, with the interpreter in one
                                                   residential settings. The Department believes,          do not qualify as service animals under the           image and the individual who is deaf or hard
                                                   however, that the presence of such animals              ADA, but whose presence nonetheless                   of hearing in the other image.’’ 73 FR 34446,
                                                   is not required in the context of title II              provides necessary emotional support to               34479 (June 17, 2008). Comments from
                                                   entities such as courthouses, State and local           persons with disabilities. Accordingly, other         advocacy organizations and individuals
                                                   government administrative buildings, and                Federal agency regulations, case law, and             unanimously requested that the Department
                                                   similar title II facilities.                            possibly State or local laws governing those          use the term ‘‘video remote interpreting
                                                      Under the Department’s previous                      situations may provide appropriately for              (VRI),’’ instead of VIS, for consistency with
                                                   regulatory framework, some individuals and              increased access for animals other than               Federal Communications Commission (FCC)
                                                   entities assumed that the requirement that              service animals as defined under the ADA.             regulations. See FCC Public Notice, DA–
                                                   service animals must be individually trained            Public officials, housing providers, and              0502417 (Sept. 7, 2005), and with common
                                                   to do work or perform tasks excluded all                others who make decisions relating to                 usage by consumers. The Department has
                                                   individuals with mental disabilities from               animals in residential and transportation             made that change throughout the regulation
                                                   having service animals. Others assumed that             settings should consult the Federal, State,           to avoid confusion and to make the
                                                   any person with a psychiatric condition                 and local laws that apply in those areas (e.g.,       regulation more consistent with existing
                                                   whose pet provided comfort to them was                  the FHAct regulations of HUD and the                  regulations.
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                                                   covered by the 1991 title II regulation. The            ACAA) and not rely on the ADA as a basis                 Many commenters also requested that the
                                                   Department reiterates that psychiatric service          for reducing those obligations.                       Department distinguish between VRI and
                                                   animals that are trained to do work or                     Retain term ‘‘service animal.’’ Some               ‘‘video relay service (VRS).’’ Both VRI and
                                                   perform a task for individuals whose                    commenters asserted that the term                     VRS use a remote interpreter who is able to
                                                   disability is covered by the ADA are                    ‘‘assistance animal’’ is a term of art and            see and communicate with a deaf person and
                                                   protected by the Department’s present                   should replace the term ‘‘service animal.’’           a hearing person, and all three individuals
                                                   regulatory approach. Psychiatric service                However, the majority of commenters                   may be connected by a video link. VRI is a
                                                   animals can be trained to perform a variety             preferred the term ‘‘service animal’’ because         fee-based interpreting service conveyed via
                                                   of tasks that assist individuals with                   it is more specific. The Department has               videoconferencing where at least one person,



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                                                   typically the interpreter, is at a separate             experience, the Department has determined             the section to make it clear that if the 2010
                                                   location. VRI can be provided as an on-                 that VRI can be an effective method of                Standards reduce either the technical
                                                   demand service or by appointment. VRI                   providing interpreting services in certain            requirements or the number of required
                                                   normally involves a contract in advance for             circumstances, but not in others. For                 accessible elements below that required by
                                                   the interpreter who is usually paid by the              example, VRI should be effective in many              the 1991 Standards, then the public entity
                                                   covered entity.                                         situations involving routine medical care, as         may reduce the technical requirements or the
                                                      VRS is a telephone service that enables              well as in the emergency room where urgent            number of accessible elements in a covered
                                                   persons with disabilities to use the telephone          care is important, but no in-person                   facility in accordance with the requirements
                                                   to communicate using video connections and              interpreter is available; however, VRI may            of the 2010 Standards.
                                                   is a more advanced form of relay service than           not be effective in situations involving                  One commenter urged the Department to
                                                   the traditional voice to text telephones (TTY)          surgery or other medical procedures where             amend § 35.133(b) to expand the language of
                                                   relay systems that were recognized in the               the patient is limited in his or her ability to       the section to restocking of shelves as a
                                                   1991 title II regulation. More specifically,            see the video screen. Similarly, VRI may not          permissible activity for isolated or temporary
                                                   VRS is a video relay service using                      be effective in situations where there are            interruptions in service or access. It is the
                                                   interpreters connected to callers by video              multiple people in a room and the                     Department’s position that a temporary
                                                   hook-up and is designed to provide                      information exchanged is highly complex               interruption that blocks an accessible route,
                                                   telephone services to persons who are deaf              and fast-paced. The Department recognizes             such as restocking of shelves, is already
                                                   and use American Sign Language that are                 that in these and other situations, such as           permitted by § 35.133(b), which clarifies that
                                                   functionally equivalent to those provided to            where communication is needed for persons             ‘‘isolated or temporary interruptions in
                                                   users who are hearing. VRS is funded                    who are deaf-blind, it may be necessary to            service or access due to maintenance or
                                                   through the Interstate Telecommunications               summon an in-person interpreter to assist             repairs’’ are permitted. Therefore, the
                                                   Relay Services Fund and overseen by the                 certain individuals. To ensure that VRI is            Department will not make any additional
                                                   FCC. See 47 CFR 64.601(a)(26). There are no             effective in situations where it is appropriate,      changes in the final rule to the language of
                                                   fees for callers to use the VRS interpreters            the Department has established performance            § 35.133(b) other than those discussed in the
                                                   and the video connection, although there                standards in § 35.160(d).                             preceding paragraph.
                                                   may be relatively inexpensive initial costs to
                                                   the title II entities to purchase the                   Subpart B—General Requirements                        Section 35.136 Service animals.
                                                   videophone or camera for on-line video                                                                            The 1991 title II regulation states that ‘‘[a]
                                                   connection, or other equipment to connect to            Section 35.130(h)        Safety.                      public entity shall make reasonable
                                                   the VRS service. The FCC has made clear that                                                                  modifications in policies, practices, or
                                                   VRS functions as a telephone service and is                Section 36.301(b) of the 1991 title III
                                                                                                           regulation provides that a public                     procedures when the modifications are
                                                   not intended to be used for interpreting
                                                                                                           accommodation ‘‘may impose legitimate                 necessary to avoid discrimination on the
                                                   services where both parties are in the same
                                                                                                           safety requirements that are necessary for            basis of disability, unless the public entity
                                                   room; the latter is reserved for VRI. The
                                                                                                           safe operation. Safety requirements must be           can demonstrate that making the
                                                   Department agrees that VRS cannot be used
                                                                                                           based on actual risks, and not on mere                modifications would fundamentally alter the
                                                   as a substitute for in-person interpreters or
                                                                                                           speculation, stereotypes, or generalizations          nature of the service, program or activity.’’ 28
                                                   for VRI in situations that would not, absent
                                                   one party’s disability, entail use of the               about individuals with disabilities.’’ 28 CFR         CFR 130(b)(7). Unlike the title III regulation,
                                                   telephone.                                              36.301(b). Although the 1991 title II                 the 1991 title II regulation did not contain a
                                                      Many commenters strongly recommended                 regulation did not include similar language,          specific provision addressing service
                                                   limiting the use of VRI to circumstances                the Department’s 1993 ADA Title II                    animals.
                                                   where it will provide effective                         Technical Assistance Manual at II–3.5200                  In the NPRM, the Department stated the
                                                   communication. Commenters from advocacy                 makes clear the Department’s view that                intention of providing the broadest feasible
                                                   groups and persons with disabilities                    public entities also have the right to impose         access to individuals with disabilities and
                                                   expressed concern that VRI may not always               legitimate safety requirements necessary for          their service animals, unless a public entity
                                                   be appropriate to provide effective                     the safe operation of services, programs, or          can demonstrate that making the
                                                   communication, especially in hospitals and              activities. To ensure consistency between the         modifications to policies excluding animals
                                                   emergency rooms. Examples were provided                 title II and title III regulations, the               would fundamentally alter the nature of the
                                                   of patients who are unable to see the video             Department has added a new § 35.130(h) in             public entity’s service, program, or activity.
                                                   monitor because they are semi-conscious or              the final rule incorporating this longstanding        The Department proposed creating a new
                                                   unable to focus on the video screen; other              position relating to imposition of legitimate         § 35.136 addressing service animals that was
                                                   examples were given of cases where the                  safety requirements.                                  intended to retain the scope of the 1991 title
                                                   video monitor is out of the sightline of the                                                                  III regulation at § 36.302(c), while clarifying
                                                                                                           Section 35.133 Maintenance of accessible              the Department’s longstanding policies and
                                                   patient or the image is out of focus; still other       features.
                                                   examples were given of patients who could                                                                     interpretations, as outlined in published
                                                   not see the image because the signal was                  Section 35.133 in the 1991 title II                 technical assistance, Commonly Asked
                                                   interrupted, causing unnatural pauses in the            regulation provides that a public entity must         Questions About Service Animals in Places
                                                   communication, or the image was grainy or               maintain in operable working condition                of Business (1996), available at http://
                                                   otherwise unclear. Many commenters                      those features of facilities and equipment that       www.ada.gov/qasrvc.ftm and ADA Guide for
                                                   requested more explicit guidelines on the use           are required to be readily accessible to and          Small Businesses (1999), available at http://
                                                   of VRI, and some recommended requirements               usable by qualified individuals with                  www.ada.gov/smbustxt.htm, and to add that
                                                   for equipment maintenance, high-speed,                  disabilities. See 28 CFR 35.133(a). In the            a public entity may exclude a service animal
                                                   wide-bandwidth video links using dedicated              NPRM, the Department clarified the                    in certain circumstances where the service
                                                   lines or wireless systems, and training of staff        application of this provision and proposed            animal fails to meet certain behavioral
                                                   using VRI, especially in hospital and health            one change to the section to address the              standards. The Department received
                                                   care situations. Several major organizations            discrete situation in which the scoping               extensive comments in response to proposed
                                                   requested a requirement to include the                  requirements provided in the 2010 Standards           § 35.136 from individuals, disability
                                                   interpreter’s face, head, arms, hands, and              reduce the number of required elements                advocacy groups, organizations involved in
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                                                   eyes in all transmissions. Finally, one State           below the requirements of the 1991                    training service animals, and public entities.
                                                   agency asked for additional guidance,                   Standards. In that discrete event, a public           Those comments and the Department’s
                                                   outreach, and mandated advertising about                entity may reduce such accessible features in         response are discussed below.
                                                   the availability of VRI in title II situations so       accordance with the requirements in the                   Exclusion of service animals. In the NPRM,
                                                   that local government entities would budget             2010 Standards.                                       the Department proposed incorporating the
                                                   for and facilitate the use of VRI in libraries,           The Department received only four                   title III regulatory language of § 36.302(c) into
                                                   schools, and other places.                              comments on this proposed amendment.                  new § 35.136(a), which states that
                                                      After consideration of the comments and              None of the commenters opposed the change.            ‘‘[g]enerally, a public entity shall modify its
                                                   the Department’s own research and                       In the final rule, the Department has revised         policies, practices, or procedures to permit



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



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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56199

                                                   assembly areas or inside some vehicles that             complies with the applicable design                      Assessment factors. Section 35.137(c) of
                                                   provide public transportation. Some                     requirements in the 1991 Standards or the             the NPRM required public entities to
                                                   individuals with disabilities have traveled by          2010 Standards, the public entity will not be         ‘‘establish policies to permit the use of other
                                                   train and have flown commercially with their            required to exceed those standards to                 power-driven mobility devices’’ and
                                                   miniature horses.                                       accommodate the use of wheelchairs or other           articulated four factors upon which public
                                                      The miniature horse is not included in the           power-driven mobility devices that exceed             entities must base decisions as to whether a
                                                   definition of service animal, which is limited          those requirements.                                   modification is reasonable to allow the use of
                                                   to dogs. However, the Department has added                 Legal standard for other power-driven              a class of other power-driven mobility
                                                   a specific provision at § 35.136(i) of the final        mobility devices. The NPRM version of                 devices by individuals with disabilities in
                                                   rule covering miniature horses. Under this              § 35.137(b) provided that ‘‘[a] public entity         specific venues (e.g., parks, courthouses,
                                                   provision, a public entity must make                    shall make reasonable modifications in its            office buildings, etc.). 73 FR 34466, 34504
                                                   reasonable modifications in policies,                   policies, practices, and procedures to permit         (June 17, 2008).
                                                   practices, or procedures to permit the use of           the use of other power-driven mobility                   The Department has relocated and
                                                   a miniature horse by an individual with a               devices by individuals with disabilities,             modified the NPRM text that appeared in
                                                   disability if the miniature horse has been              unless the public entity can demonstrate that         § 35.137(c) to new paragraph § 35.137(b)(2) to
                                                   individually trained to do work or perform              the use of the device is not reasonable or that       clarify what factors the public entity shall
                                                   tasks for the benefit of the individual with a          its use will result in a fundamental alteration       use in determining whether a particular other
                                                   disability. The public entity may take into             in the public entity’s service, program, or           power-driven mobility device can be allowed
                                                   account a series of assessment factors in               activity.’’ 73 FR 34466, 34505 (June 17, 2008).       in a specific facility as a reasonable
                                                   determining whether to allow a miniature                In other words, public entities are by default        modification. Section 35.137(b)(2) now states
                                                   horse into a specific facility. These include           required to permit the use of other power-            that ‘‘[i]n determining whether a particular
                                                   the type, size, and weight of the miniature             driven mobility devices; the burden is on             other power-driven mobility device can be
                                                   horse; whether the handler has sufficient               them to prove the existence of a valid                allowed in a specific facility as a reasonable
                                                   control of the miniature horse; whether the             exception.                                            modification under (b)(1), a public entity
                                                   miniature horse is housebroken; and whether                Most commenters supported the notion of            shall consider’’ certain enumerated factors.
                                                   the miniature horse’s presence in a specific            assessing whether the use of a particular             The assessment factors are designed to assist
                                                                                                           device is reasonable in the context of a              public entities in determining whether
                                                   facility compromises legitimate safety
                                                                                                           particular venue. Commenters, however,                allowing the use of a particular other power-
                                                   requirements that are necessary for safe
                                                                                                           disagreed about the meaning of the word               driven mobility device in a specific facility
                                                   operation. In addition, paragraphs (c)–(h) of
                                                                                                           ‘‘reasonable’’ as it is used in § 35.137(b) of the    is reasonable. Thus, the focus of the analysis
                                                   this section, which are applicable to dogs,
                                                                                                           NPRM. Advocacy and nonprofit groups                   must be on the appropriateness of the use of
                                                   also apply to miniature horses.                         almost universally objected to the use of a
                                                      Ponies and full-size horses are not covered                                                                the device at a specific facility, rather than
                                                                                                           general reasonableness standard with regard
                                                   by § 35.136(i). Also, because miniature horses                                                                whether it is necessary for an individual to
                                                                                                           to the assessment of whether a particular
                                                   can vary in size and can be larger and less                                                                   use a particular device.
                                                                                                           device should be allowed at a particular
                                                   flexible than dogs, covered entities may                                                                         The NPRM proposed the following specific
                                                                                                           venue. They argued that the assessment
                                                   exclude this type of service animal if the                                                                    assessment factors: (1) The dimensions,
                                                                                                           should be based on whether reasonable
                                                   presence of the miniature horse, because of                                                                   weight, and operating speed of the mobility
                                                                                                           modifications could be made to allow a
                                                   its larger size and lower level of flexibility,                                                               device in relation to a wheelchair; (2) the
                                                                                                           particular device at a particular venue, and
                                                   results in a fundamental alteration to the              that the only factors that should be part of          potential risk of harm to others by the
                                                   nature of the programs activities, or services          the calculus that results in the exclusion of         operation of the mobility device; (3) the risk
                                                   provided.                                               a particular device are undue burden, direct          of harm to the environment or natural or
                                                                                                           threat, and fundamental alteration.                   cultural resources or conflict with Federal
                                                   Section 35.137 Mobility devices.                                                                              land management laws and regulations; and
                                                                                                              A few commenters opposed the proposed
                                                      Section 35.137 of the NPRM clarified the             provision requiring public entities to assess         (4) the ability of the public entity to stow the
                                                   scope and circumstances under which                     whether reasonable modifications can be               mobility device when not in use, if requested
                                                   covered entities are legally obligated to               made to allow other power-driven mobility             by the user.
                                                   accommodate various ‘‘mobility devices.’’               devices, preferring instead that the                     Factor 1 was designed to help public
                                                   Section 35.137 set forth specific requirements          Department issue guidance materials so that           entities assess whether a particular device
                                                   for the accommodation of ‘‘mobility devices,’’          public entities would not have to incur the           was appropriate, given its particular physical
                                                   including wheelchairs, manually-powered                 cost of such analyses. Another commenter              features, for a particular location. Virtually
                                                   mobility aids, and other power-driven                   noted a ‘‘fox guarding the hen house’’-type of        all commenters said the physical features of
                                                   mobility devices.                                       concern with regard to public entities                the device affected their view of whether a
                                                      In both the NPRM and the final rule,                 developing and enforcing their own                    particular device was appropriate for a
                                                   § 35.137(a) states the general rule that in any         modification policy.                                  particular location. For example, while many
                                                   areas open to pedestrians, public entities                 In response to comments received, the              commenters supported the use of another
                                                   shall permit individuals with mobility                  Department has revised § 35.137(b) to                 power-driven mobility device if the device
                                                   disabilities to use wheelchairs and manually-           provide greater clarity regarding the                 were a Segway® PT, because of
                                                   powered mobility aids, including walkers,               development of legitimate safety                      environmental and health concerns they did
                                                   crutches, canes, braces, or similar devices.            requirements regarding other power-driven             not offer the same level of support if the
                                                   Because mobility scooters satisfy the                   mobility devices and has added a new                  device were an off-highway vehicle, all-
                                                   definition of ‘‘wheelchair’’ (i.e., ‘‘manually-         § 35.130(h) (Safety) to the title II regulation       terrain vehicle (ATV), golf car, or other
                                                   operated or power-driven device designed                which specifically permits public entities to         device with a fuel-powered or combustion
                                                   primarily for use by an individual with a               impose legitimate safety requirements                 engine. Most commenters noted that
                                                   mobility disability for the main purpose of             necessary for the safe operation of their             indicators such as speed, weight, and
                                                   indoor, or of both indoor and outdoor                   services, programs, and activities. (See              dimension really were an assessment of the
                                                   locomotion’’), the reference to them in                 discussion below.) The Department has not             appropriateness of a particular device in
                                                   § 35.137(a) of the final rule has been omitted          retained the proposed NPRM language stating           specific venues and suggested that factor 1
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                                                   to avoid redundancy.                                    that an other power-driven mobility device            say this more specifically.
                                                      Some commenters expressed concern that               can be excluded if a public entity can                   The term ‘‘in relation to a wheelchair’’ in
                                                   permitting the use of other power-driven                demonstrate that its use is unreasonable or           the NPRM’s factor 1 apparently created some
                                                   mobility devices by individuals with                    will result in a fundamental alteration of the        concern that the same legal standards that
                                                   mobility disabilities would make such                   entity’s service, program, or activity, because       apply to wheelchairs would be applied to
                                                   devices akin to wheelchairs and would                   the Department believes that this exception           other power-driven mobility devices. The
                                                   require them to make physical changes to                is covered by the general reasonable                  Department has omitted the term ‘‘in relation
                                                   their facilities to accommodate their use.              modification requirement contained in                 to a wheelchair’’ from § 35.137(b)(2)(i) to
                                                   This concern is misplaced. If a facility                § 35.130(b)(7).                                       clarify that if a facility that is in compliance



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



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                                                   device users who do not have mobility                   parking placards. In the examples provided            § 35.137(b)(1) or with one or more of the
                                                   disabilities. These commenters believed they            by commenters, the parking placards were              § 35.137(b)(2) factors. Only after an
                                                   should be given more latitude to make                   accepted as verification that the Segway® PTs         individual with a disability has satisfied all
                                                   inquiries of other power-driven mobility                were being used as mobility devices.                  of the public entity’s policies regarding the
                                                   device users claiming a mobility disability                Because many individuals with mobility             use of other power-driven mobility devices
                                                   than they would be given for wheelchair                 disabilities avail themselves of State                does a credible assurance become a factor in
                                                   users. They sought the ability to establish a           programs that issue disability parking                allowing the use of the device. For example,
                                                   policy or method by which public entities               placards or cards and because these programs          if an individual seeking to use an other
                                                   may assess the legitimacy of the mobility               have penalties for fraudulent representations         power-driven mobility device fails to satisfy
                                                   disability. They suggested some form of                 of identity and disability, utilizing the             any of the public entity’s stated policies
                                                   certification, sticker, or other designation.           parking placard system as a means to                  regarding the use of other power-driven
                                                   One commenter suggested a requirement that              establish the existence of a mobility                 mobility devices, the fact that the individual
                                                   a sticker bearing the international symbol for          disability strikes a balance between the need         legitimately possesses and presents a valid,
                                                   accessibility be placed on the device or that           for privacy of the individual and fraud               State-issued disability parking placard or
                                                   some other identification be required to                protection for the public entity.                     card, or State-issued proof of disability, does
                                                   signal that the use of the device is for a              Consequently, the Department has decided to           not trump the policy and require the public
                                                   mobility disability. Other suggestions                  include regulatory text in § 35.137(c)(2) of the      entity to allow the use of the device. In fact,
                                                   included displaying a disability parking                final rule that requires public entities to           in some instances, the presentation of a
                                                   placard on the device or issuing EPAMDs,                accept the presentation of a valid, State-            legitimately held placard or card, or State-
                                                   like the Segway® PT, a permit that would be             issued disability parking placard or card, or         issued proof of disability, will have no
                                                   similar to permits associated with parking              State-issued proof of disability, as                  relevance or bearing at all on whether the
                                                   spaces reserved for those with disabilities.            verification that an individual uses the other        other power-driven mobility device may be
                                                      Advocacy, nonprofit, and several                     power-driven mobility device for his or her           used, because the public entity’s policy does
                                                   individual commenters balked at the notion              mobility disability. A ‘‘valid’’ disability           not permit the device in question on-site
                                                   of allowing any inquiry beyond whether the              placard or card is one that is presented by the       under any circumstances (e.g., because its
                                                   device is necessary for a mobility disability           individual to whom it was issued and is               use would create a substantial risk of serious
                                                   and encouraged the Department to retain the             otherwise in compliance with the State of             harm to the immediate environment or
                                                   NPRM’s language on this topic. Other                    issuance’s requirements for disability                natural or cultural resources). Thus, an
                                                   commenters, however, were empathetic with               placards or cards. Public entities are required       individual with a mobility disability who
                                                   commenters who had concerns about fraud.                to accept a valid, State-issued disability            presents a valid disability placard or card, or
                                                   At least one Segway® PT advocate suggested              parking placard or card, or State-issued proof        State-issued proof of disability, will not be
                                                   it would be permissible to seek                         of disability as a credible assurance, but they       able to use an ATV as an other power-driven
                                                   documentation of the mobility disability in             cannot demand or require the presentation of          mobility device in a State park if the State
                                                   the form of a simple sign or permit.                    a valid disability placard or card, or State-         park has adopted a policy banning their use
                                                                                                           issued proof of disability, as a prerequisite         for any or all of the above-mentioned reasons.
                                                      The Department has sought to find
                                                                                                                                                                 However, if a public entity permits the use
                                                   common ground by balancing the needs of                 for use of an other power-driven mobility
                                                                                                                                                                 of a particular other power-driven mobility
                                                   public entities and individuals with mobility           device, because not all persons with mobility
                                                                                                                                                                 device, it cannot refuse to admit an
                                                   disabilities wishing to use other power-                disabilities have such means of proof. If an
                                                                                                                                                                 individual with a disability who uses that
                                                   driven mobility devices with the                        individual with a mobility disability does not
                                                                                                                                                                 device if the individual has provided a
                                                   Department’s longstanding, well-established             have such a placard or card, or State-issued
                                                                                                                                                                 credible assurance that the use of the device
                                                   policy of not allowing public entities or               proof of disability, he or she may present
                                                                                                                                                                 is for a mobility disability.
                                                   establishments to require proof of a mobility           other information that would serve as a
                                                   disability. There is no question that public            credible assurance of the existence of a              Section 35.138 Ticketing
                                                   entities have a legitimate interest in ferreting        mobility disability.                                     The 1991 title II regulation did not contain
                                                   out fraudulent representations of mobility                 In lieu of a valid, State-issued disability        specific regulatory language on ticketing. The
                                                   disabilities, especially given the recreational         parking placard or card, or State-issued proof        ticketing policies and practices of public
                                                   use of other power-driven mobility devices              of disability, a verbal representation, not           entities, however, are subject to title II’s
                                                   and the potential safety concerns created by            contradicted by observable fact, shall be             nondiscrimination provisions. Through the
                                                   having too many such devices in a specific              accepted as a credible assurance that the             investigation of complaints, enforcement
                                                   facility at one time. However, the privacy of           other power-driven mobility device is being           actions, and public comments related to
                                                   individuals with mobility disabilities and              used because of a mobility disability. This           ticketing, the Department became aware that
                                                   respect for those individuals, is also vitally          does not mean, however, that a mobility               some venue operators, ticket sellers, and
                                                   important.                                              disability must be observable as a condition          distributors were violating title II’s
                                                      Neither § 35.137(d) of the NPRM nor                  for allowing the use of an other power-driven         nondiscrimination mandate by not providing
                                                   § 35.137(c) of the final rule permits inquiries         mobility device by an individual with a               individuals with disabilities the same
                                                   into the nature of a person’s mobility                  mobility disability, but rather that if an            opportunities to purchase tickets for
                                                   disability. However, the Department does not            individual represents that a device is being          accessible seating as they provided to
                                                   believe it is unreasonable or overly intrusive          used for a mobility disability and that               spectators purchasing conventional seats. In
                                                   for an individual with a mobility disability            individual is observed thereafter engaging in         the NPRM, the Department proposed § 35.138
                                                   seeking to use an other power-driven                    a physical activity that is contrary to the           to provide explicit direction and guidance on
                                                   mobility device to provide a credible                   nature of the represented disability, the             discriminatory practices for entities involved
                                                   assurance to verify that the use of the other           assurance given is no longer credible and the         in the sale or distribution of tickets.
                                                   power-driven mobility device is for a                   individual may be prevented from using the               The Department received comments from
                                                   mobility disability. The Department sought to           device.                                               advocacy groups, assembly area trade
                                                   minimize the amount of discretion and                      Possession of a valid, State-issued                associations, public entities, and individuals.
                                                   subjectivity exercised by public entities in            disability parking placard or card or a verbal        Many commenters supported the addition of
                                                   assessing whether an individual has a                   assurance does not trump a public entity’s            regulatory language pertaining to ticketing
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                                                   mobility disability and to allow public                 valid restrictions on the use of other power-         and urged the Department to retain it in the
                                                   entities to verify the existence of a mobility          driven mobility devices. Accordingly, a               final rule. Several commenters, however,
                                                   disability. The solution was derived from               credible assurance that the other power-              questioned why there were inconsistencies
                                                   comments made by several individuals who                driven mobility device is being used because          between the title II and title III provisions
                                                   said they have been admitted with their                 of a mobility disability is not a guarantee of        and suggested that the same language be used
                                                   Segway® PTs into public entities and public             entry to a public entity because,                     for both titles. The Department has decided
                                                   accommodations that ordinarily do not allow             notwithstanding such credible assurance, use          to retain ticketing regulatory language and to
                                                   these devices on-site when they have                    of the device in a particular venue may be            ensure consistency between the ticketing
                                                   presented or displayed State-issued disability          at odds with the legal standard in                    provisions in title II and title III.



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                                                   56202        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                            56203

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



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                                                   56204        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56205

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



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                                                   tickets. The Department has reworded this               § 35.139 Direct threat                                   not, solely because of the Department’s
                                                   paragraph to reflect that the individual with              In Appendix A of the Department’s 1991                adoption of the [2010] Standards, required to
                                                   a disability does not have to be the ticket             title II regulation, the Department included a           retrofit such elements to reflect incremental
                                                   purchaser. The final rule allows third parties          detailed discussion of ‘‘direct threat’’ that,           changes in the proposed standards.’’ 73 FR
                                                   to purchase accessible tickets at the request           among other things, explained that ‘‘the                 34466, 34505 (June 17, 2008). In these
                                                   of an individual with a disability.                     principles established in § 36.208 of the                circumstances, the public entity would be
                                                      Commenters also argued that other                    Department’s [title III] regulation’’ were               entitled to a safe harbor for the already
                                                   individuals with disabilities who do not use            ‘‘applicable’’ as well to title II, insofar as           compliant elements until those elements are
                                                   wheelchairs should be permitted to purchase             ‘‘questions of safety are involved.’’ 28 CFR             altered. The safe harbor does not negate a
                                                   accessible seating. Some individuals with               part 35, app. A at 565 (2009). In the final              public entity’s new construction or alteration
                                                                                                           rule, the Department has included specific               obligations. A public entity must comply
                                                   disabilities who do not use wheelchairs
                                                                                                           requirements related to ‘‘direct threat’’ that           with the new construction or alteration
                                                   urged the Department to change the rule,
                                                                                                           parallel those in the title III rule. These              requirements in effect at the time of the
                                                   asserting that they, too, need accessible                                                                        construction or alteration. With respect to
                                                   seating. The Department agrees that such                requirements are found in new § 35.139.
                                                                                                                                                                    existing facilities designed and constructed
                                                   seating, although designed for use by a                                                                          after January 26, 1992, but before the public
                                                   wheelchair user, may be used by non-
                                                                                                           Subpart D—Program Accessibility
                                                                                                                                                                    entities are required to comply with the 2010
                                                   wheelchair users, if those persons are                  Section 35.150(b)(2)            Safe harbor              Standards, the rule is that any elements in
                                                   persons with a disability who need to use                                                                        these facilities that were not constructed in
                                                   accessible seating because of a mobility                   The ‘‘program accessibility’’ requirement in          conformance with UFAS or the 1991
                                                   disability or because their disability requires         regulations implementing title II of the                 Standards are in violation of the ADA and
                                                   the use of the features that accessible seating         Americans with Disabilities Act requires that
                                                                                                                                                                    must be brought into compliance. If elements
                                                   provides (e.g., individuals who cannot bend             each service, program, or activity, when
                                                                                                                                                                    in existing facilities were altered after
                                                   their legs because of braces, or individuals            viewed in its entirety, be readily accessible to
                                                                                                                                                                    January 26, 1992, and those alterations were
                                                   who, because of their disability, cannot sit in         and usable by individuals with disabilities.
                                                                                                                                                                    not made in conformance with the alteration
                                                   a straight-back chair).                                 28 CFR 35.150(a). Because title II evaluates
                                                                                                                                                                    requirements in effect at the time, then those
                                                                                                           a public entity’s programs, services, and
                                                      Some commenters raised concerns that                                                                          alteration violations must be corrected.
                                                                                                           activities in their entirety, public entities
                                                   allowing venues to ask questions to                                                                              Section 35.150(b)(2) of the final rule specifies
                                                                                                           have flexibility in addressing accessibility
                                                   determine whether individuals purchasing                                                                         that until the compliance date for the
                                                                                                           issues. Program access does not necessarily
                                                   accessible seating are doing so legitimately            require a public entity to make each of its              Standards (18 months from the date of
                                                   would burden individuals with disabilities in           existing facilities accessible to and usable by          publication of the rule), facilities or elements
                                                   the purchase of accessible seating. The                 individuals with disabilities, and public                covered by § 35.151(a) or (b) that are
                                                   Department has retained the substance of this           entities are not required to make structural             noncompliant with either the 1991 Standards
                                                   provision in § 35.138(h) of the final rule, but         changes to existing facilities where other               or UFAS shall be made accessible in
                                                   emphasizes that such questions should be                methods are effective in achieving program               accordance with the 1991 Standards, UFAS,
                                                   asked at the initial time of purchase. For              access. See id. 3 Public entities do, however,           or the 2010 Standards. Once the compliance
                                                   example, if the method of purchase is via the           have program access considerations that are              date is reached, such noncompliant facilities
                                                   Internet, then the question(s) should be                independent of, but may coexist with,                    or elements must be made accessible in
                                                   answered by clicking a yes or no box during             requirements imposed by new construction                 accordance with the 2010 Standards.
                                                   the transaction. The public entity may warn             or alteration requirements in those same                    The Department received many comments
                                                   purchasers that accessible seating is for               facilities.                                              on the safe harbor during the 60-day public
                                                   individuals with disabilities and that                     Where a public entity opts to alter existing          comment period. Advocacy groups were
                                                   individuals purchasing such tickets                     facilities to comply with its program access             opposed to the safe harbor for compliant
                                                   fraudulently are subject to relocation.                 requirements, the entity must meet the                   elements in existing facilities. These
                                                      One commenter argued that face-to-face               accessibility requirements for alterations set           commenters objected to the Department’s
                                                   contact between the venue and the ticket                out in § 35.151. Under the final rule, these             characterization of revisions between the
                                                   holder should be required in order to prevent           alterations will be subject to the 2010                  1991 and 2010 Standards as incremental
                                                   fraud and suggested that individuals who                Standards. The 2010 Standards introduce                  changes and assert that these revisions
                                                                                                           technical and scoping specifications for                 represent important advances in accessibility
                                                   purchase accessible seating should be
                                                                                                           many elements not covered by the 1991                    for individuals with disabilities. Commenters
                                                   required to pick up their tickets at the box
                                                                                                           Standards. In existing facilities, these                 saw no basis for ‘‘grandfathering’’ outdated
                                                   office and then enter the venue immediately.
                                                                                                           supplemental requirements need to be taken               accessibility standards given the flexibility
                                                   The Department has declined to adopt that
                                                                                                           into account by a public entity in ensuring              inherent in the program access standard.
                                                   suggestion. It would be discriminatory to
                                                                                                           program access. Also included in the 2010                Others noted that title II’s ‘‘undue financial
                                                   require individuals with disabilities to pick                                                                    and administrative burdens’’ and
                                                   up tickets at the box office when other                 Standards are revised technical and scoping
                                                                                                           requirements for a number of elements that               ‘‘fundamental alteration’’ defenses eliminate
                                                   spectators are not required to do so. If the                                                                     any need for further exemptions from
                                                                                                           were addressed in the 1991 Standards. These
                                                   assembly area wishes to make face-to-face                                                                        compliance. Some commenters suggested
                                                                                                           revised requirements reflect incremental
                                                   contact with accessible seating ticket holders                                                                   that entities’ past efforts to comply with the
                                                                                                           changes that were added either because of
                                                   to curb fraud, it may do so through its ushers          additional study by the Access Board or in               program access standard of 28 CFR 35.150(a)
                                                   and other customer service personnel located            order to harmonize requirements with the                 might appropriately be a factor in
                                                   within the seating area.                                model codes.                                             determining what is required in the future.
                                                      Some commenters asked whether it is                     Although the program accessibility                       Many public entities welcomed the
                                                   permissible for assembly areas to have                  standard offers public entities a level of               Department’s proposed safe harbor. These
                                                   voluntary clubs where individuals with                  discretion in determining how to achieve                 commenters contend that the safe harbor
                                                   disabilities self-identify to the public entity         program access, in the NPRM, the                         allows public entities needed time to
                                                   in order to become a member of a club that              Department proposed an addition to § 35.150              evaluate program access in light of the 2010
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                                                   entitles them to purchase accessible seating            at § 35.150(b)(2), denominated ‘‘Safe Harbor,’’          Standards, and incorporate structural
                                                   reserved for club members or otherwise                  to clarify that ‘‘[i]f a public entity has               changes in a careful and thoughtful way
                                                   receive priority in purchasing accessible               constructed or altered elements * * * in                 toward increasing accessibility entity-wide.
                                                   seating. The Department agrees that such                accordance with the specifications in either             Many felt that it would be an ineffective use
                                                   clubs are permissible, provided that a                  the 1991 Standards or the Uniform Federal                of public funds to update buildings to retrofit
                                                   reasonable amount of accessible seating                 Accessibility Standard, such public entity is            elements that had already been constructed
                                                   remains available at all prices and dispersed                                                                    or modified to Department-issued and
                                                   at all locations for individuals with                      3 The term ‘‘existing facility’’ is defined in        sanctioned specifications. One entity pointed
                                                   disabilities who are non-members.                       § 35.104 as amended by this rule.                        to the ‘‘possibly budget-breaking’’ nature of



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



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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                              56209

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



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                                                   56210        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   service, program, or activity conducted by a            water parks, must be assessed on a case-by-           redesignated as § 35.151(a)(1). The
                                                   public entity, when viewed in its entirety,             case basis. Therefore, the Department has not         Department has added a new section,
                                                   must still be readily accessible to and usable          included such an exemption for wading                 designated as § 35.151(a)(2), to provide that
                                                   by individuals with disabilities unless doing           pools in its final rule.                              full compliance with the requirements of this
                                                   so would result in a fundamental alteration                Saunas and steam rooms. The 1991                   section is not required where an entity can
                                                   in the nature of the program or activity or in          Standards do not address saunas and steam             demonstrate that it is structurally
                                                   undue financial and administrative burdens.             rooms. Section 35.150(b)(5)(iii) of the NPRM          impracticable to meet the requirements. Full
                                                   Determining which pool(s) to make                       exempted existing saunas and steam rooms              compliance will be considered structurally
                                                   accessible and whether more than one                    that seat only two individuals and were not           impracticable only in those rare
                                                   accessible pool is necessary to provide                 being altered from section 241 of the 2004            circumstances when the unique
                                                   program access requires analysis of a number            ADAAG, which requires an accessible                   characteristics of terrain prevent the
                                                   of factors, including, but not limited to, the          turning space. Two commenters objected to             incorporation of accessibility features. This
                                                   size of the public entity, geographical                 this exemption as unnecessary, and argued             exception was contained in the title III
                                                   distance between pool sites, whether more               that the cost of accessible saunas is not high        regulation and in the 1991 Standards
                                                   than one community is served by particular              and public entities still have an undue               (applicable to both public accommodations
                                                   pools, travel times to the pools, the total             financial and administrative burdens                  and facilities used by public entities), so it
                                                   number of pools, the availability of lessons            defense.                                              has applied to any covered facility that was
                                                   and other programs and amenities at each                   The Department considered these                    constructed under the 1991 Standards since
                                                   pool, and the availability of public                    comments and has decided to eliminate the             the effective date of the ADA. The
                                                   transportation to the pools. In many                    exemption for existing saunas and steam               Department added it to the text of § 35.151
                                                   instances, making one existing swimming                 rooms that seat only two people. Such an              to maintain consistency between the design
                                                   pool accessible will not be sufficient to               exemption is unnecessary because covered              requirements that apply under title II and
                                                   ensure program accessibility. There may,                entities will not be subject to program               those that apply under title III. The
                                                   however, be some circumstances where a                  accessibility requirements to make existing           Department received no significant
                                                   small public entity can demonstrate that                saunas and steam rooms accessible if doing            comments about this section.
                                                   modifying one pool is sufficient to provide             so constitutes an undue financial and
                                                   access to the public entity’s program of                                                                      Section 35.151(b) Alterations
                                                                                                           administrative burden. The Department
                                                   providing public swimming pools. In all                 believes it is likely that because of their pre-         The 1991 title II regulation does not
                                                   cases, a public entity must still demonstrate           fabricated forms, which include built-in              contain any specific regulatory language
                                                   that its programs, including the program of             seats, it would be either technically                 comparable to the 1991 title III regulation
                                                   providing public swimming pools, when                   infeasible or an undue financial and                  relating to alterations and path of travel for
                                                   viewed in their entirety, are accessible.               administrative burden to modify such saunas           covered entities, although the 1991 Standards
                                                      Wading pools. The 1991 Standards do not              and steams rooms. Consequently, a separate            describe standards for path of travel during
                                                   address wading pools. Section 242.3 of the              exemption for saunas and steam rooms                  alterations to a primary function. See 28 CFR
                                                   2004 ADAAG requires newly constructed or                would have been superfluous. Finally,                 part 36, app A., section 4.1.6(a) (2009).
                                                   altered wading pools to provide at least one            employing the program accessibility standard             The path of travel requirements contained
                                                   sloped means of entry to the deepest part of            for small saunas and steam rooms is                   in the title III regulation are based on section
                                                   the pool. The Department was concerned                  consistent with the Department’s decisions            303(a)(2) of the ADA, 42 U.S.C. 12183(a)(2),
                                                   about the potential impact of this new                  regarding the proposed exemptions for play            which provides that when an entity
                                                   requirement on existing wading pools.                   areas and swimming pools.                             undertakes an alteration to a place of public
                                                   Therefore, in the NPRM, the Department                     Several commenters also argued in favor of         accommodation or commercial facility that
                                                   sought comments on whether existing                     a specific exemption for existing spas. The           affects or could affect the usability of or
                                                   wading pools that are not being altered                 Department notes that the technical                   access to an area that contains a primary
                                                   should be exempt from this requirement,                 infeasibility and program accessibility               function, the entity shall ensure that, to the
                                                   asking, ‘‘[w]hat site constraints exist in              defenses are applicable equally to existing           maximum extent feasible, the path of travel
                                                   existing facilities that could make it difficult        spas and declines to adopt such an                    to the altered area—and the restrooms,
                                                   or infeasible to install a sloped entry in an           exemption.                                            telephones, and drinking fountains serving
                                                   existing wading pool? Should existing                      Other recreational facilities. In the NPRM,        it—is readily accessible to and usable by
                                                   wading pools that are not being altered be              the Department asked about a number of                individuals with disabilities, including
                                                   exempt from the requirement to provide a                issues relating to recreation facilities such as      individuals who use wheelchairs.
                                                   sloped entry? ’’ 73 FR 34466, 34487–88 (June            team or player seating areas, areas of sport             The NPRM proposed amending § 35.151 to
                                                   17, 2008). Most commenters agreed that                  activity, exercise machines, boating facilities,      add both the path of travel requirements and
                                                   existing wading pools that are not being                fishing piers and platforms, and miniature            the exemption relating to barrier removal (as
                                                   altered should be exempt from this                      golf courses. The Department’s questions              modified to apply to the program
                                                   requirement. Almost all commenters felt that            addressed the costs and benefits of applying          accessibility standard in title II) that are
                                                   during alterations a sloped entry should be             the 2004 ADAAG to these spaces and                    contained in the title III regulation to the title
                                                   provided unless it was technically infeasible           facilities and the application of the specific        II regulation. Proposed § 35.151(b)(4)
                                                   to do so. Several commenters felt that the              technical requirements in the 2004 ADAAG              contained the requirements for path of travel.
                                                   required clear deck space surrounding a pool            for these spaces and facilities. The discussion       Proposed § 35.151(b)(2) stated that the path
                                                   provided sufficient space for a sloped entry            of the comments received by the Department            of travel requirements of § 35.151(b)(4) shall
                                                   during alterations.                                     on these issues and the Department’s                  not apply to measures taken solely to comply
                                                      The Department also solicited comments               response to those comments can be found in            with program accessibility requirements.
                                                   on the possibility of exempting existing                either the section of Appendix A to this rule            Where the specific requirements for path of
                                                   wading pools from the obligation to provide             entitled ‘‘Other Issues,’’ or in Appendix B to        travel apply under title III, they are limited
                                                   program accessibility. Most commenters                  the final title III rule, which will be               to the extent that the cost and scope of
                                                   argued that installing a sloped entry in an             published today elsewhere in this volume.             alterations to the path of travel are
                                                   existing wading pool is not very feasible.                                                                    disproportionate to the cost of the overall
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                                                   Because covered entities are not required to            Section 35.151 New construction and                   alteration, as determined under criteria
                                                   undertake modifications that would be                   alterations                                           established by the Attorney General.
                                                   technically infeasible, the Department                     Section 35.151(a), which provided that                The Access Board included the path of
                                                   believes that the rule as drafted provides              those facilities that are constructed or altered      travel requirement for alterations to facilities
                                                   sufficient protection from unwarranted                  by, on behalf of, or for the use of a public          covered by the standards (other than those
                                                   expense to the operators of small existing              entity shall be designed, constructed, or             subject to the residential facilities standards)
                                                   wading pools. Other existing wading pools,              altered to be readily accessible to and usable        in section 202.4 of 2004 ADAAG. Section
                                                   particularly those larger pools associated              by individuals with disabilities, is                  35.151(b)(4)(iii) of the final rule establishes
                                                   with facilities such as aquatic centers or              unchanged in the final rule, but has been             the criteria for determining when the cost of



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56211

                                                   alterations to the path of travel is                    They argued that just as the requirement to           accessible in order to meet its program access
                                                   ‘‘disproportionate’’ to the cost of the overall         provide an accessible path of travel to an            obligations, it will have to comply with the
                                                   alteration.                                             altered area (regardless of the reason for the        2010 Standards unless the public entity can
                                                      The NPRM also provided that areas such               alteration), including making the restrooms,          demonstrate that full compliance would
                                                   as supply storage rooms, employee lounges               telephones, and drinking fountains that serve         result in undue financial and administrative
                                                   and locker rooms, janitorial closets,                   the altered area accessible, is a necessary           burdens as described in § 35.150(a)(3). If such
                                                   entrances, and corridors are not areas                  requirement in other alterations, it is equally       action would result in an undue financial or
                                                   containing a primary function. Nor are                  necessary for alterations made to provide             administrative burden, the public entity
                                                   restroom areas considered to contain a                  program access. Several commenters                    would nevertheless be required to take some
                                                   primary function unless the provision of                expressed concern that a readily accessible           other action that would not result in such an
                                                   restrooms is a primary purpose of the facility,         path of travel be available to ensure that            alteration or such burdens but would ensure
                                                   such as at a highway rest stop. In that                 persons with disabilities can get to the              that the benefits and services provided by the
                                                   situation, a restroom would be considered to            physical location in which programs are               public entity are readily accessible to persons
                                                   be an ‘‘area containing a primary function’’ of         held. Otherwise, they will not be able to             with disabilities. When the public entity is
                                                   the facility.                                           access the public entity’s service, program, or       making modifications to meet its program
                                                      The Department is not changing the                   activity. Such access is a cornerstone of the         access obligation, it may not rely on the path
                                                   requirements for program accessibility. As              protections provided by the ADA. Another              of travel exception under § 35.151(b)(4),
                                                   provided in § 35.151(b)(2) of the regulation,           commenter argued that it would be a waste             which limits the requirement to those
                                                   the path of travel requirements of                      of money to create an accessible facility             alterations where the cost and scope of the
                                                   § 35.151(b)(4) only apply to alterations                without having a way to get to the primary            alterations are not disproportionate to the
                                                   undertaken solely for purposes other than to            area. This commenter also stated that the             cost and scope of the overall alterations. If
                                                   meet the program accessibility requirements.            International Building Code (IBC) requires            the public entity later decides to alter
                                                   The exemption for the specific path of travel           the path of travel to a primary function area,        courtrooms in the other building, for
                                                   requirement was included in the regulation              up to 20 percent of the cost of the project.          purposes of updating the facility (and, as
                                                   to ensure that the specific requirements and            Another commenter opposed the exemption,              previously stated, has met its program access
                                                   disproportionality exceptions for path of               stating that the trigger of an alteration is          obligations) then in that case, the public
                                                   travel are not applied when areas are being             frequently the only time that a facility must         entity would have to comply with the path
                                                   altered to meet the title II program                    update its facilities to comply with evolving         of travel requirements in the 2010 Standards
                                                   accessibility requirements in § 35.150. In              accessibility standards.                              subject to the disproportionality exception
                                                   contrast, when areas are being altered to meet             In the Department’s view, the commenters           set forth in § 35.151(b)(4).
                                                   program accessibility requirements, they                objecting to the path of travel exemption                The Department has slightly revised
                                                   must comply with all of the applicable                  contained in § 35.151(b)(2) did not                   proposed § 35.151(b)(2) to make it clearer
                                                   requirements referenced in section 202 of the           understand the intention behind the                   that the path of travel requirements only
                                                   2010 Standards. A covered title II entity must          exemption. The exemption was not intended             apply when alterations are undertaken solely
                                                   provide accessibility to meet the                       to eliminate any existing requirements                for purposes other than program
                                                   requirements of § 35.150 unless doing so is             related to accessibility for alterations              accessibility.
                                                   an undue financial and administrative                   undertaken in order to meet program access
                                                   burden in accordance with § 35.150(a)(3). A             obligations under § 35.149 and § 35.150.              Section 35.151(b)(4)(ii)(C) Path of travel—
                                                   covered title II entity may not use the                 Rather, it was intended to ensure that                safe harbor
                                                   disproportionality exception contained in the           covered entities did not apply the path of               In § 35.151(b)(4)(ii)(C) of the NPRM, the
                                                   path of travel provisions as a defense to               travel requirements in lieu of the overarching        Department included a provision that stated
                                                   providing an accessible route as part of its            requirements in this Subpart that apply when          that public entities that have brought
                                                   obligation to provide program accessibility.            making a facility accessible in order to              required elements of path of travel into
                                                   The undue financial and administrative                  comply with program accessibility. The                compliance with the 1991 Standards are not
                                                   burden standard does not contain any bright             exemption was also intended to make it clear          required to retrofit those elements in order to
                                                   line financial tests.                                   that the disproportionality test contained in         reflect incremental changes in the 2010
                                                      The Department’s proposed § 35.151(b)(4)             the path of travel standards is not applicable        Standards solely because of an alteration to
                                                   adopted the language now contained in                   in determining whether providing program              a primary function area that is served by that
                                                   § 36.403 of the title III regulation, including         access results in an undue financial and              path of travel. In these circumstances, the
                                                   the disproportionality limitation (i.e.,                administration burden within the meaning of           public entity is entitled to a safe harbor and
                                                   alterations made to provide an accessible               § 35.150(a)(3). The exemption was also                is only required to modify elements to
                                                   path of travel to the altered area would be             provided to maintain consistency with the             comply with the 2010 Standards if the public
                                                   deemed disproportionate to the overall                  title III path of travel exemption for barrier        entity is planning an alteration to the
                                                   alteration when the cost exceeds 20 percent             removal, see § 36.304(d), in keeping with the         element.
                                                   of the cost of the alteration to the primary            Department’s regulatory authority under title            A substantial number of commenters
                                                   function area). Proposed § 35.151(b)(2)                 II of the ADA. See 42 U.S.C. 12134(b); see            objected to the Department’s imposition of a
                                                   provided that the path of travel requirements           also H. R Rep. No. 101B485, pt. 2, at 84              safe harbor for alterations to facilities of
                                                   do not apply to alterations undertaken solely           (1990) (‘‘The committee intends, however,             public entities that comply with the 1991
                                                   to comply with program accessibility                    that the forms of discrimination prohibited           Standards. These commenters argued that if
                                                   requirements.                                           by section 202 be identical to those set out          a public entity is already in the process of
                                                      The Department received a substantial                in the applicable provisions of titles I and III      altering its facility, there should be a legal
                                                   number of comments objecting to the                     of this legislation.’’).                              requirement that individuals with disabilities
                                                   Department’s adoption of the exemption for                 For title II entities, the path of travel          be entitled to increased accessibility by using
                                                   the path of travel requirements when                    requirements are of significance in those             the 2010 Standards for path of travel work.
                                                   alterations are undertaken solely to meet               cases where an alteration is being made               They also stated that they did not believe
                                                   program accessibility requirements. These               solely for reasons other than program                 there was a statutory basis for
                                                   commenters argued that the Department had               accessibility. For example, a public entity           ‘‘grandfathering’’ facilities that comply with
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                                                   no statutory basis for providing this                   might have six courtrooms in two existing             the 1991 Standards.
                                                   exemption nor does it serve any purpose. In             buildings and might determine that only                  The ADA is silent on the issue of
                                                   addition, these commenters argued that the              three of those courtrooms and the public use          ‘‘grandfathering’’ or establishing a safe harbor
                                                   path of travel exemption has the effect of              and common use areas serving those                    for measuring compliance in situations
                                                   placing new limitations on the obligations to           courtrooms in one building are needed to be           where the covered entity is not undertaking
                                                   provide program access. A number of                     made accessible in order to satisfy its               a planned alteration to specific building
                                                   commenters argued that doing away with the              program access obligations. When the public           elements. The ADA delegates to the Attorney
                                                   path of travel requirement would render                 entity makes those courtrooms and the public          General the responsibility for issuing
                                                   meaningless the concept of program access.              use and common use areas serving them                 regulations that define the parameters of



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                                                   56212        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   covered entities’ obligations when the statute          Standards for Accessible Design (2010                 ADAAG, which was initially developed by
                                                   does not directly address an issue. This                Standards). As the Department has noted, the          the Access Board as guidelines for the
                                                   regulation implements that delegation of                development of these standards represents             accessibility of buildings and facilities that
                                                   authority.                                              the culmination of a lengthy effort by the            are subject to title III. The Department
                                                      One commenter proposed that a previous               Access Board to update its guidelines, to             adopted the 1991 ADAAG as the standards
                                                   record of barrier removal be one of the factors         make the Federal guidelines consistent to the         for places of public accommodation and
                                                   in determining, prospectively, what renders             extent permitted by law, and to harmonize             commercial facilities under title III of the
                                                   a facility, when viewed in its entirety, usable         the Federal requirements with the private             ADA and it was published as Appendix A to
                                                   and accessible to persons with disabilities.            sector model codes that form the basis of             the Department’s regulation implementing
                                                   Another commenter asked the Department to               many State and local building code                    title III, 56 FR 35592 (July 26, 1991) as
                                                   clarify, at a minimum, that to the extent               requirements. The full text of the 2010               amended, 58 FR 17522 (April 5, 1993), and
                                                   compliance with the 1991 Standards does not             Standards is available for public review on           as further amended, 59 FR 2675 (Jan. 18,
                                                   provide program access, particularly with               the ADA Home Page (http://www.ada.gov)                1994), codified at 28 CFR part 36 (2009).
                                                   regard to areas not specifically addressed in           and on the Access Board’s Web site (http://              Section 35.151(c) of the final rule adopts
                                                   the 1991 Standards, the safe harbor will not            www.access-board.gov/gs.htm) (last visited            the 2010 Standards and establishes the
                                                   operate to relieve an entity of its obligations         June 24, 2010). The Access Board site also            compliance date and triggering events for the
                                                   to provide program access.                              includes an extensive discussion of the               application of those standards to both new
                                                      One commenter supported the proposal to              development of the 2004 ADA/ABA                       construction and alterations. Appendix B of
                                                   add a safe harbor for path of travel.                   Guidelines, and a detailed comparison of the          the final title III rule (Analysis and
                                                      The final rule retains the safe harbor for           1991 Standards, the 2004 ADA/ABA                      Commentary on the 2010 ADA Standards for
                                                   required elements of a path of travel to                Guidelines, and the 2003 International                Accessible Design) (which will be published
                                                   altered primary function areas for public               Building Code.                                        today elsewhere in this volume and codified
                                                   entities that have already complied with the               Section 204 of the ADA, 42 U.S.C. 12134,           as Appendix B to 28 CFR part 36) provides
                                                   1991 Standards with respect to those                    directs the Attorney General to issue                 a description of the major changes in the
                                                   required elements. The Department believes              regulations to implement title II that are            2010 Standards (as compared to the 1991
                                                   that this safe harbor strikes an appropriate            consistent with the minimum guidelines                ADAAG) and a discussion of the public
                                                   balance between ensuring that individuals               published by the Access Board. The Attorney           comments that the Department received on
                                                   with disabilities are provided access to                General (or his designee) is a statutory              specific sections of the 2004 ADAAG. A
                                                   buildings and facilities and potential                  member of the Access Board (see 29 U.S.C.             number of commenters asked the Department
                                                   financial burdens on existing public entities           792(a)(1)(B(vii)) and was involved in the             to revise certain provisions in the 2004
                                                   that are undertaking alterations subject to the         development of the 2004 ADAAG.                        ADAAG in a manner that would reduce
                                                   2010 Standards. This safe harbor is not a               Nevertheless, during the process of drafting          either the required scoping or specific
                                                   blanket exemption for facilities. If a public           the NPRM, the Department reviewed the                 technical accessibility requirements. As
                                                   entity undertakes an alteration to a primary            2004 ADAAG to determine if additional                 previously stated, although the ADA requires
                                                   function area, only the required elements of            regulatory provisions were necessary. As a            the enforceable standards issued by the
                                                   a path of travel to that area that already              result of this review, the Department decided         Department under title II and title III to be
                                                   comply with the 1991 Standards are subject              to propose new sections, which were                   consistent with the minimum guidelines
                                                   to the safe harbor. If a public entity                  contained in § 35.151(e)–(h) of the NPRM, to          published by the Access Board, it is the sole
                                                   undertakes an alteration to a primary                   clarify how the Department will apply the             responsibility of the Attorney General to
                                                   function area and the required elements of a            proposed standards to social service center           promulgate standards and to interpret and
                                                   path of travel to the altered area do not               establishments, housing at places of                  enforce those standards. The guidelines
                                                   comply with the 1991 Standards, then the                education, assembly areas, and medical care           adopted by the Access Board are ‘‘minimum
                                                   public entity must bring those elements into            facilities. Each of these provisions is               guidelines.’’ 42 U.S.C. 12186(c).
                                                   compliance with the 2010 Standards.                     discussed below.                                         Compliance date. When the ADA was
                                                                                                              Congress anticipated that there would be a         enacted, the effective dates for various
                                                   Section 35.151(b)(3) Alterations to historic            need for close coordination of the ADA                provisions were delayed in order to provide
                                                   facilities                                              building requirements with State and local            time for covered entities to become familiar
                                                      The final rule renumbers the requirements            building code requirements. Therefore, the            with their new obligations. Titles II and III
                                                   for alterations to historic facilities                  ADA authorized the Attorney General to                of the ADA generally became effective on
                                                   enumerated in current § 35.151(d)(1) and (2)            establish an ADA code certification process           January 26, 1992, six months after the
                                                   as § 35.151(b)(3)(i) and (ii). Currently, the           under title III of the ADA. That process is           regulations were published. See 42 U.S.C.
                                                   regulation provides that alterations to                 addressed in 28 CFR part 36, subpart F.               12131 note; 42 U.S.C. 12181 note. New
                                                   historic facilities shall comply to the                 Revisions to that process are addressed in the        construction under title II and alterations
                                                   maximum extent feasible with section 4.1.7              regulation amending the title III regulation          under either title II or title III had to comply
                                                   of UFAS or section 4.1.7 of the 1991                    published elsewhere in the Federal Register           with the design standards on that date. See
                                                   Standards. See 28 CFR 35.151(d)(1). Section             today. In addition, the Department operates           42 U.S.C. 12183(a)(1). For new construction
                                                   35.151(b)(3)(i) of the final rule eliminates the        an extensive technical assistance program.            under title III, the requirements applied to
                                                   option of using UFAS for alterations that               The Department anticipates that once this             facilities designed and constructed for first
                                                   commence on or after March 15, 2012. The                rule is final, revised technical assistance           occupancy after January 26, 1993—18
                                                   substantive requirement in current                      material will be issued to provide guidance           months after the 1991 Standards were
                                                   § 35.151(d)(2)—that alternative methods of              about its implementation.                             published by the Department. In the NPRM,
                                                   access shall be provided pursuant to the                   Section 35.151(c) of the 1991 title II             the Department proposed to amend
                                                   requirements of § 35.150 if it is not feasible          regulation establishes two standards for              § 35.151(c)(1) by revising the current
                                                   to provide physical access to an historic               accessible new construction and alteration.           language to limit the application of the 1991
                                                   property in a manner that will not threaten             Under paragraph (c), design, construction, or         standards to facilities on which construction
                                                   or destroy the historic significance of the             alteration of facilities in conformance with          commences within six months of the final
                                                   building or facility—is contained in                    UFAS or with the 1991 Standards (which, at            rule adopting revised standards. The NPRM
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                                                   § 35.151(b)(3)(ii).                                     the time of the publication of the rule were          also proposed adding paragraph (c)(2) to
                                                                                                           also referred to as the Americans with                § 35.151, which states that facilities on which
                                                   Section 35.151(c) Accessibility standards               Disabilities Act Accessibility Guidelines for         construction commences on or after the date
                                                   for new construction and alterations                    Buildings and Facilities (1991 ADAAG)) is             six months following the effective date of the
                                                     Section 35.151(c) of the NPRM proposed to             deemed to comply with the requirements of             final rule shall comply with the proposed
                                                   adopt ADA Chapter 1, ADA Chapter 2, and                 this section with respect to those facilities         standards adopted by that rule.
                                                   Chapters 3 through 10 of the Americans with             (except that if the 1991 Standards are chosen,           As a result, under the NPRM, for the first
                                                   Disabilities Act and Architectural Barriers             the elevator exemption does not apply). The           six months after the effective date, public
                                                   Act Guidelines (2004 ADAAG) into the ADA                1991 Standards were based on the 1991                 entities would have the option to use either



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56213

                                                   UFAS or the 1991 Standards and be in                    final rule is published. Until the time               Standards or UFAS on the date that they
                                                   compliance with title II. Six months after the          compliance with the 2010 Standards is                 were constructed or altered, but do not
                                                   effective date of the rule, the new standards           required, public entities will have the option        comply with the technical and scoping
                                                   would take effect. At that time, construction           of complying with the 2010 Standards, the             specifications for those elements in the 1991
                                                   in accordance with UFAS would no longer                 UFAS, or the 1991 Standards. However,                 Standards or UFAS. Section 35.151(c)(5) of
                                                   satisfy ADA requirements. The Department                public entities that choose to comply with            the final rule sets forth the rules for
                                                   stated that in order to avoid placing the               the 2010 Standards in lieu of the 1991                noncompliant new construction or
                                                   burden of complying with both standards on              Standards or UFAS prior to the compliance             alterations in facilities that were subject to
                                                   public entities, the Department would                   date described in this rule must choose one           the requirements of this part. Under those
                                                   coordinate a government-wide effort to revise           of the three standards, and may not rely on           provisions, noncomplying new construction
                                                   Federal agencies’ section 504 regulations to            some of the requirements contained in one             and alterations constructed or altered after
                                                   adopt the 2004 ADAAG as the standard for                standard and some of the requirements                 the effective date of the applicable ADA
                                                   new construction and alterations.                       contained in the other standards.                     requirements and before March 15, 2012
                                                      The purpose of the proposed six-month                    Triggering event. In § 35.151(c)(2) of the        shall, before March 15, 2012, be made
                                                   delay in requiring compliance with the 2010             NPRM, the Department proposed that the                accessible in accordance with either the 1991
                                                   Standards was to allow covered entities a               commencement of construction serve as the             Standards, UFAS, or the 2010 Standards.
                                                   reasonable grace period to transition between           triggering event for applying the proposed            Noncomplying new construction and
                                                   the existing and the proposed standards. For            standards to new construction and alterations         alterations constructed or altered after the
                                                   that reason, if a title II entity preferred to use      under title II. This language is consistent           effective date of the applicable ADA
                                                   the 2010 Standards as the standard for new              with the triggering event set forth in                requirements and before March 15, 2012,
                                                   construction or alterations commenced                   § 35.151(a) of the 1991 title II regulation. The      shall, on or after March 15, 2012 be made
                                                   within the six-month period after the                   Department received only four comments on             accessible in accordance with the 2010
                                                   effective date of the final rule, such entity           this section of the title II rule. Three              Standards.
                                                   would be considered in compliance with title            commenters supported the use of ‘‘start of
                                                   II of the ADA.                                          construction’’ as the triggering event. One           Section 35.151(d) Scope of coverage
                                                      The Department received a number of                  commenter argued that the Department                     In the NPRM, the Department proposed a
                                                   comments about the proposed six-month                   should use the ‘‘last building permit or start        new provision, § 35.151(d), to clarify that the
                                                   effective date for the title II regulation that         of physical construction, whichever comes             requirements established by § 35.151,
                                                   were similar in content to those received on            first,’’ stating that ‘‘altering a design after a     including those contained in the 2004
                                                   this issue for the proposed title III regulation.       building permit has been issued can be an             ADAAG, prescribe what is necessary to
                                                   Several commenters supported the six-month              undue burden.’’                                       ensure that buildings and facilities, including
                                                   effective date. One commenter stated that any               After considering these comments, the             fixed or built-in elements in new or altered
                                                   revisions to its State building code becomes            Department has decided to continue to use             facilities, are accessible to individuals with
                                                   effective six months after adoption and that            the commencement of physical construction             disabilities. Once the construction or
                                                   this has worked well. In addition, this                 as the triggering event for application of the        alteration of a facility has been completed, all
                                                   commenter stated that since 2004 ADAAG is               2010 Standards for entities covered by title          other aspects of programs, services, and
                                                   similar to IBC 2006 and ICC/ANSI A117.1–                II. The Department has also added clarifying          activities conducted in that facility are
                                                   2003, the transition should be easy. By                 language at § 35.151(c)(4) to the regulation to       subject to the operational requirements
                                                   contrast, another commenter advocated for a             make it clear that the date of ceremonial             established in this final rule. Although the
                                                   minimum 12-month effective date, arguing                groundbreaking or the date a structure is             Department may use the requirements of the
                                                   that a shorter effective date could cause               razed to make it possible for construction of         2010 Standards as a guide to determining
                                                   substantial economic hardships to many                  a facility to take place does not qualify as the      when and how to make equipment and
                                                   cities and towns because of the lengthy lead            commencement of physical construction.                furnishings accessible, those determinations
                                                   time necessary for construction projects. This              Section 234 of the 2010 Standards provides        fall within the discretionary authority of the
                                                   commenter was concerned that a six-month                accessibility guidelines for newly designed           Department.
                                                   effective date could lead to projects having to         and constructed amusement rides. The                     The Department also wishes to clarify that
                                                   be completely redrawn, rebid, and                       amusement ride provisions do not provide a            the advisory notes, appendix notes, and
                                                   rescheduled to ensure compliance with the               ‘‘triggering event’’ for new construction or          figures that accompany the 1991 and 2010
                                                   new standards. Other commenters advocated               alteration of an amusement ride. An industry          Standards do not establish separately
                                                   that the effective date be extended to at least         commenter requested that the triggering               enforceable requirements unless specifically
                                                   18 months after the publication of the rule.            event of ‘‘first use,’’ as noted in the Advisory      stated otherwise in the text of the standards.
                                                   One of these commenters expressed concern               note to section 234.1 of the 2004 ADAAG, be           This clarification has been made to address
                                                   that the kinds of bureaucratic organizations            included in the final rule. The Advisory note         concerns expressed by ANPRM commenters
                                                   subject to the title II regulations lack the            provides that ‘‘[a] custom designed and               who mistakenly believed that the advisory
                                                   internal resources to quickly evaluate the              constructed ride is new upon its first use,           notes in the 2004 ADAAG established
                                                   regulatory changes, determine whether they              which is the first time amusement park                requirements beyond those established in the
                                                   are currently compliant with the 1991                   patrons take the ride.’’ The Department               text of the guidelines (e.g., Advisory 504.4
                                                   standards, and determine what they have to              declines to treat amusement rides differently         suggests, but does not require, that covered
                                                   do to comply with the new standards. The                than other types of new construction and              entities provide visual contrast on stair tread
                                                   other commenter argued that 18 months is                alterations. Under the final rule, they are           nosing to make them more visible to
                                                   the minimum amount of time necessary to                 subject to § 35.151(c). Thus, newly                   individuals with low vision). The
                                                   ensure that projects that have already been             constructed and altered amusement rides               Department received no significant
                                                   designed and approved do not have to                    shall comply with the 2010 Standards if the           comments on this section and it is
                                                   undergo costly design revisions at taxpayer             start of physical construction or the alteration      unchanged in the final rule.
                                                   expense.                                                is on or after 18 months from the publication            Definitions of residential facilities and
                                                      The Department is persuaded by the                   date of this rule. The Department also notes          transient lodging. The 2010 Standards add a
                                                   concerns raised by commenters for both the              that section 234.4.2 of the 2010 Standards            definition of ‘‘residential dwelling unit’’ and
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                                                   title II and III regulations that the six-month         only applies where the structural or                  modify the current definition of ‘‘transient
                                                   compliance date proposed in the NPRM for                operational characteristics of an amusement           lodging.’’ Under section 106.5 of the 2010
                                                   application of the 2010 Standards may be too            ride are altered. It does not apply in cases          Standards, ‘‘residential dwelling unit’’ is
                                                   short for certain projects that are already in          where the only change to a ride is the theme.         defined as ‘‘[a] unit intended to be used as
                                                   the midst of the design and permitting                      Noncomplying new construction and                 a residence, that is primarily long-term in
                                                   process. The Department has determined that             alterations. The element-by-element safe              nature’’ and does not include transient
                                                   for new construction and alterations,                   harbor referenced in § 35.150(b)(2) has no            lodging, inpatient medical care, licensed
                                                   compliance with the 2010 Standards will not             effect on new or altered elements in existing         long-term care, and detention or correctional
                                                   be required until 18 months from the date the           facilities that were subject to the 1991              facilities. Additionally, section 106.5 of the



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                                                   2010 Standards changes the definition of                   The NPRM explained that this proposal              halfway houses, and other social service
                                                   ‘‘transient lodging’’ to a building or facility         was based on two important changes in the             center establishments, and from the clients of
                                                   ‘‘containing one or more guest room(s) for              2004 ADAAG. First, for the first time,                these facilities who would be affected by this
                                                   sleeping that provides accommodations that              residential dwelling units are explicitly             proposed change, asking, ‘‘[t]o what extent
                                                   are primarily short-term in nature.’’                   covered in the 2004 ADAAG in section 233.             have conflicts between the ADA and section
                                                   ‘‘Transient lodging’’ does not include                  Second, the 2004 ADAAG eliminates the                 504 affected these facilities? What would be
                                                   residential dwelling units intended to be               language contained in the 1991 Standards              the effect of applying the residential dwelling
                                                   used as a residence. The references to                  addressing scoping and technical                      unit requirements to these facilities, rather
                                                   ‘‘dwelling units’’ and ‘‘dormitories’’ that are in      requirements for homeless shelters, group             than the requirements for transient lodging
                                                   the definition of the 1991 Standards are                homes, and similar social service center              guest rooms?’’ 73 FR 34466, 34491 (June 17,
                                                   omitted from the 2010 Standards.                        establishments. Currently, such                       2008).
                                                       The comments about the application of               establishments are covered in section 9.5 of            Many of the commenters supported
                                                   transient lodging or residential standards to           the transient lodging section of the 1991             applying the residential facilities
                                                   social service center establishments, and               Standards. The deletion of section 9.5 creates        requirements to social service center
                                                   housing at a place of education are addressed           an ambiguity of coverage that must be                 establishments, stating that even though the
                                                   separately below. The Department received               addressed.                                            residential facilities requirements are less
                                                   one additional comment on this issue from                  The NPRM explained the Department’s                demanding in some instances, the existence
                                                   an organization representing emergency                  belief that transferring coverage of social           of one clear standard will result in an overall
                                                   response personnel seeking an exemption                 service center establishments from the                increased level of accessibility by eliminating
                                                   from the transient lodging accessibility                transient lodging standards to the residential        the confusion and inaction that are
                                                   requirements for crew quarters and common               facilities standards would alleviate                  sometimes caused by the current existence of
                                                   use areas serving those crew quarters (e.g.,            conflicting requirements for social service           multiple requirements. One commenter also
                                                   locker rooms, exercise rooms, day room) that            center providers. The Department believes             stated that ‘‘it makes sense to treat social
                                                   are used exclusively by on-duty emergency               that a substantial percentage of social service       service center establishments like residential
                                                   response personnel and that are not used for            center establishments are recipients of               facilities because this is how these
                                                   any public purpose. The commenter argued                Federal financial assistance from the                 establishments function in practice.’’
                                                   that since emergency response personnel                 Department of Housing and Urban                         Two commenters agreed with applying the
                                                   must meet certain physical qualifications that          Development (HUD). The Department of                  residential facilities requirements to social
                                                   have the effect of exempting persons with               Health and Human Services (HHS) also                  service center establishments but
                                                   mobility disabilities, there is no need to build        provides financial assistance for the                 recommended adding a requirement for
                                                   crew quarters and common use areas serving              operation of shelters through the                     various bathing options, such as a roll-in
                                                   those crew quarters to meet the 2004                    Administration for Children and Families              shower (which is not required under the
                                                   ADAAG. In addition, the commenter argued                programs. As such, these establishments are           residential standards).
                                                   that applying the transient lodging standards           covered both by the ADA and section 504 of              One commenter objected to the change and
                                                   would impose significant costs and create               the Rehabilitation Act. UFAS is currently the         asked the Department to require that social
                                                   living space that is less usable for most               design standard for new construction and              service center establishments continue to
                                                   emergency response personnel.                           alterations for entities subject to section 504.      comply with the transient lodging standards.
                                                       The ADA does not exempt spaces because                                                                    One commenter stated that it did not agree
                                                                                                           The two design standards for accessibility—
                                                   of a belief or policy that excludes persons
                                                                                                           the 1991 Standards and UFAS—have                      that the standards for residential coverage
                                                   with disabilities from certain work. However,
                                                                                                           confronted many social service providers              would serve persons with disabilities as well
                                                   the Department believes that crew quarters
                                                                                                           with separate, and sometimes conflicting,             as the 1991 transient lodging standards. This
                                                   that are used exclusively as a residence by
                                                                                                           requirements for design and construction of           commenter expressed concern that the
                                                   emergency response personnel and the
                                                                                                           facilities. To resolve these conflicts, the           Department had eliminated guidance for
                                                   kitchens and bathrooms exclusively serving
                                                                                                           residential facilities standards in the 2004          social service agencies and that the rule
                                                   those quarters are more like residential
                                                                                                           ADAAG have been coordinated with the                  should be put on hold until those safeguards
                                                   dwelling units and are therefore covered by
                                                                                                           section 504 requirements. The transient               are restored. Another commenter argued that
                                                   the residential dwelling standards in the
                                                   2010 Standards, not the transient lodging               lodging standards, however, are not similarly         the rule that would provide the greatest
                                                   standards. The residential dwelling standards           coordinated. The deletion of section 9.5 of           access for persons with disabilities should
                                                   address most of the concerns of the                     the 1991 Standards from the 2004 ADAAG                prevail.
                                                   commenter. For example, the commenter was               presented two options: (1) Require coverage             Several commenters argued for the
                                                   concerned that sinks in kitchens and                    under the transient lodging standards, and            application of the transient lodging standards
                                                   lavatories in bathrooms that are accessible             subject such facilities to separate, conflicting      to all social service center establishments
                                                   under the transient lodging standards would             requirements for design and construction; or          except those that were ‘‘intended as a
                                                   be too low to be comfortably used by                    (2) require coverage under the residential            person’s place of abode,’’ referencing the
                                                   emergency response personnel. The                       facilities standards, which would harmonize           Department’s question related to the
                                                   residential dwelling standards allow such               the regulatory requirements under the ADA             definition of ‘‘place of lodging’’ in the title III
                                                   features to be adaptable so that they would             and section 504. The Department chose the             NPRM. One commenter stated that the
                                                   not have to be lowered until accessibility was          option that harmonizes the regulatory                 International Building Code requires
                                                   needed. Similarly, grab bars and shower seats           requirements: coverage under the residential          accessible units in all transient facilities. The
                                                   would not have to be installed at the time of           facilities standards.                                 commenter expressed concern that group
                                                   construction provided that reinforcement has               In the NPRM, the Department expressed              homes should be built to be accessible, rather
                                                   been installed in walls and located so as to            concern that the residential facilities               than adaptable.
                                                   permit their installation at a later date.              standards do not include a requirement for              The Department continues to be concerned
                                                                                                           clear floor space next to beds similar to the         about alleviating the challenges for social
                                                   Section 35.151(e) Social service center                 requirement in the transient lodging                  service providers that are also subject to
                                                   establishments                                          standards and as a result, the Department             section 504 and would likely be subject to
                                                     In the NPRM, the Department proposed a                proposed adding a provision that would                conflicting requirements if the transient
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                                                   new § 35.151(e) requiring group homes,                  require certain social service center                 lodging standards were applied. Thus, the
                                                   halfway houses, shelters, or similar social             establishments that provide sleeping rooms            Department has retained the requirement that
                                                   service center establishments that provide              with more than 25 beds to ensure that a               social service center establishments comply
                                                   temporary sleeping accommodations or                    minimum of 5 percent of the beds have clear           with the residential dwelling standards. The
                                                   residential dwelling units to comply with the           floor space in accordance with section                Department believes, however, that social
                                                   provisions of the 2004 ADAAG that apply to              806.2.3 or 3004 ADAAG.                                service center establishments that provide
                                                   residential facilities, including, but not                 In the NPRM, the Department requested              emergency shelter to large transient
                                                   limited to, the provisions in sections 233 and          information from providers who operate                populations should be able to provide
                                                   809.                                                    homeless shelters, transient group homes,             bathing facilities that are accessible to



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                            56215

                                                   persons with mobility disabilities who need                Although the 1991 Standards mention                housing facilities could hinder access to
                                                   roll-in showers. Because of the transient               dormitories as a form of transient lodging,           educational programs for students with
                                                   nature of the population of these large                 they do not specifically address how the              disabilities. Elevators are not generally
                                                   shelters, it will not be feasible to modify             ADA applies to dormitories or other types of          required under the 2004 ADAAG residential
                                                   bathing facilities in a timely manner when              residential housing provided in an                    facilities standards unless they are needed to
                                                   faced with a need to provide a roll-in shower           educational setting. The 1991 Standards also          provide an accessible route from accessible
                                                   with a seat when requested by an overnight              do not contain any specific provisions for            units to public use and common use areas,
                                                   visitor. As a result, the Department has added          residential facilities, allowing covered              while under the 2004 ADAAG as it applies
                                                   a requirement that social service center                entities to elect to follow the residential           to other types of facilities, multistory public
                                                   establishments with sleeping                            standards contained in UFAS. Although the             facilities must have elevators unless they
                                                   accommodations for more than 50                         2004 ADAAG contains provisions for both               meet very specific exceptions. In addition,
                                                   individuals must provide at least one roll-in           residential facilities and transient lodging,         the residential facilities standards do not
                                                   shower with a seat that complies with the               the guidelines do not indicate which                  require accessible roll-in showers in
                                                   relevant provisions of section 608 of the 2010          requirements apply to housing provided in             bathrooms, while the transient lodging
                                                   Standards. Transfer-type showers are not                an educational setting, leaving it to the             requirements require some of the accessible
                                                   permitted in lieu of a roll-in shower with a            adopting agencies to make that choice. After          units to be served by bathrooms with roll-in
                                                   seat and the exceptions in sections 608.3 and           evaluating both sets of standards, the                showers. The transient lodging standards also
                                                   608.4 for residential dwelling units are not            Department concluded that the benefits of             require that a greater number of units have
                                                   permitted. When separate shower facilities              applying the transient lodging standards              accessible features for persons with
                                                   are provided for men and for women, at least            outweighed the benefits of applying the               communication disabilities. The transient
                                                   one roll-in shower shall be provided for each           residential facilities standards. Consequently,       lodging standards provide for installation of
                                                   group. This supplemental requirement to the             in the NPRM, the Department proposed a                the required accessible features so that they
                                                   residential facilities standards is in addition         new § 35.151(f) that provided that residence          are available immediately, but the residential
                                                   to the supplemental requirement that was                halls or dormitories operated by or on behalf         facilities standards allow for certain features
                                                   proposed in the NPRM for clear floor space              of places of education shall comply with the          of the unit to be adaptable. For example, only
                                                   in sleeping rooms with more than 25 beds.               provisions of the proposed standards for              reinforcements for grab bars need to be
                                                      The Department also notes that while                 transient lodging, including, but not limited         provided in residential dwellings, but the
                                                   dwelling units at some social service center            to, the provisions in sections 224 and 806 of         actual grab bars must be installed under the
                                                   establishments are also subject to the Fair             the 2004 ADAAG.                                       transient lodging standards. By contrast, the
                                                   Housing Act (FHAct) design and construction                Both public and private school housing             residential facilities standards do require
                                                   requirements that require certain features of           facilities have varied characteristics. College       certain features that provide greater
                                                   adaptable and accessible design, FHAct units            and university housing facilities typically           accessibility within units, such as more
                                                   do not provide the same level of accessibility          provide housing for up to one academic year,          usable kitchens, and an accessible route
                                                   that is required for residential facilities under       but may be closed during school vacation              throughout the dwelling. The residential
                                                   the 2010 Standards. The FHAct                           periods. In the summer, they are often used           facilities standards also require 5 percent of
                                                   requirements, where also applicable, should             for short-term stays of one to three days, a          the units to be accessible to persons with
                                                   not be considered a substitute for the 2010             week, or several months. Graduate and                 mobility disabilities, which is a continuation
                                                   Standards. Rather, the 2010 Standards must                                                                    of the same scoping that is currently required
                                                                                                           faculty housing is often provided year-round
                                                   be followed in addition to the FHAct
                                                                                                           in the form of apartments, which may serve            under UFAS, and is therefore applicable to
                                                   requirements.
                                                                                                           individuals or families with children. These          any educational institution that is covered by
                                                      The Department also notes that whereas
                                                                                                           housing facilities are diverse in their layout.       section 504. The transient lodging standards
                                                   the NPRM used the term ‘‘social service
                                                                                                           Some are double-occupancy rooms with a                require a lower percentage of accessible
                                                   establishment,’’ the final rule uses the term
                                                                                                           shared toilet and bathing room, which may             sleeping rooms for facilities with large
                                                   ‘‘social service center establishment.’’ The
                                                                                                           be inside or outside the unit. Others may             numbers of rooms than is required by UFAS.
                                                   Department has made this editorial change so
                                                                                                           contain cluster, suite, or group arrangements         For example, if a dormitory had 150 rooms,
                                                   that the final rule is consistent with the
                                                                                                           where several rooms are located inside a              the transient lodging standards would require
                                                   terminology used in the ADA. See 42 U.S.C.
                                                   12181(7)(k).                                            defined unit with bathing, kitchen, and               seven accessible rooms while the residential
                                                                                                           similar common facilities. In some cases,             standards would require eight. In a large
                                                   Section 35.151(f) Housing at a place of                 these suites are indistinguishable in features        dormitory with 500 rooms, the transient
                                                   education                                               from traditional apartments. Universities may         lodging standards would require 13
                                                      The Department of Justice and the                    build their own housing facilities or enter           accessible rooms and the residential facilities
                                                   Department of Education share responsibility            into agreements with private developers to            standards would require 25. There are other
                                                   for regulation and enforcement of the ADA in            build, own, or lease housing to the                   differences between the two sets of standards
                                                   postsecondary educational settings,                     educational institution or to its students.           as well with respect to requirements for
                                                   including its requirements for architectural            Academic housing may be located on the                accessible windows, alterations, kitchens,
                                                   features. In addition, the Department of                campus of the university or may be located            accessible route throughout a unit, and clear
                                                   Housing and Urban Development (HUD) has                 in nearby neighborhoods.                              floor space in bathrooms allowing for a side
                                                   enforcement responsibility for housing                     Throughout the school year and the                 transfer.
                                                   subject to title II of the ADA. Housing                 summer, academic housing can become                      In the NPRM, the Department requested
                                                   facilities in educational settings range from           program areas in which small groups meet,             public comment on how to scope educational
                                                   traditional residence halls and dormitories to          receptions and educational sessions are held,         housing facilities, asking, ‘‘[w]ould the
                                                   apartment or townhouse-style residences. In             and social activities occur. The ability to           residential facility requirements or the
                                                   addition to title II of the ADA, public                 move between rooms—both accessible rooms              transient lodging requirements in the 2004
                                                   universities and schools that receive Federal           and standard rooms—in order to socialize, to          ADAAG be more appropriate for housing at
                                                   financial assistance are also subject to section        study, and to use all public use and common           places of education? How would the different
                                                   504, which contains its own accessibility               use areas is an essential part of having access       requirements affect the cost when building
                                                   requirements through the application of                 to these educational programs and activities.         new dormitories and other student housing?’’
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                                                   UFAS. Residential housing in an educational             Academic housing is also used for short-term          73 FR 34466, 34492 (June 17, 2008).
                                                   setting is also covered by the FHAct, which             transient educational programs during the                The vast majority of the comments
                                                   requires newly constructed multifamily                  time students are not in regular residence            received by the Department advocated using
                                                   housing to include certain features of                  and may be rented out to transient visitors in        the residential facilities standards for
                                                   accessible and adaptable design. Covered                a manner similar to a hotel for special               housing at a place of education instead of the
                                                   entities subject to the ADA must always be              university functions.                                 transient lodging standards, arguing that
                                                   aware of, and comply with, any other Federal               The Department was concerned that                  housing at places of public education are in
                                                   statutes or regulations that govern the                 applying the new construction requirements            fact homes for the students who live in them.
                                                   operation of residential properties.                    for residential facilities to educational             These commenters argued, however, that the



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                                                   56216        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   Department should impose a requirement for              accessible turning spaces and work surfaces           that other individuals use to reach their seats.
                                                   a variety of options for accessible bathing and         in kitchens, and the accessible route                 For example, if other patrons reach their
                                                   should ensure that all floors of dormitories be         throughout the unit. This will ensure the             seats on the field by an inaccessible route
                                                   accessible so that students with disabilities           maintenance of the transient lodging                  (e.g., by stairs), but there is an accessible
                                                   have the same opportunities to participate in           standard requirements related to access to all        route that complies with section 206.3 of the
                                                   the life of the dormitory community that are            floors of the facility, roll-in showers in            2010 Standards that could be connected to
                                                   provided to students without disabilities.              facilities with more than 50 sleeping rooms,          seats on the field, wheelchair spaces and
                                                   Commenters representing persons with                    and other important accessibility features not        companion seats must be placed on the field
                                                   disabilities and several individuals argued             found in the residential facilities standards,        even if that route is not generally available
                                                   that, although the transient lodging standards          but will also ensure usable kitchens and              to the public.
                                                   may provide a few more accessible features              access to all the rooms in a suite or                    Regulatory language that was included in
                                                   (such as roll-in showers), the residential              apartment.                                            the 2004 ADAAG advisory, but that did not
                                                   facilities standards would ensure that                     The Department has added a new                     appear in the NPRM, has been added by the
                                                   students with disabilities have access to all           definition to § 35.104, ‘‘Housing at a Place of       Department in § 35.151(g)(2). Section
                                                   rooms in their assigned unit, not just to the           Education,’’ and has revised § 35.151(f) to           35.151(g)(2) now requires an assembly area
                                                   sleeping room, kitchenette, and wet bar. One            reflect the accessible features that now will         that has seating encircling, in whole or in
                                                   commenter stated that, in its view, the                 be required in addition to the requirements           part, a field of play or performance area such
                                                   residential facilities standards were                   set forth under the transient lodging                 as an arena or stadium, to place wheelchair
                                                   congruent with overlapping requirements                 standards. The Department also recognizes             spaces and companion seats around the
                                                   from HUD, and that access provided by the               that some educational institutions provide            entire facility. This rule, which is designed
                                                   residential facilities requirements within              some residential housing on a year-round              to prevent a public entity from placing
                                                   alterations would ensure dispersion of                  basis to graduate students and staff which is         wheelchair spaces and companion seats on
                                                   accessible features more effectively. This              comparable to private rental housing, and             one side of the facility only, is consistent
                                                   commenter also argued that while the                    which contains no facilities for educational          with the Department’s enforcement practices
                                                   increased number of required accessible                 programming. Section 35.151(f)(3) exempts             and reflects its interpretation of section
                                                   units for residential facilities as compared to         from the transient lodging standards                  4.33.3 of the 1991 Standards.
                                                   transient lodging may increase the cost of              apartments or townhouse facilities provided              In the NPRM, the Department proposed
                                                   construction or alteration, this cost would be          by or on behalf of a place of education that          § 35.151(g)(2) which prohibits wheelchair
                                                   offset by a reduced need to adapt rooms later           are leased on a year-round basis exclusively          spaces and companion seating locations from
                                                   if the demand for accessible rooms exceeds              to graduate students or faculty, and do not           being ‘‘located on, (or obstructed by)
                                                   the supply. The commenter also encouraged               contain any public use or common use areas            temporary platforms or other moveable
                                                   the Department to impose a visitability                 available for educational programming;                structures.’’ Through its enforcement actions,
                                                   (accessible doorways and necessary clear                instead, such housing shall comply with the           the Department discovered that some venues
                                                   floor space for turning radius) requirement             requirements for residential facilities in            place wheelchair spaces and companion
                                                   for both the residential facilities and                 sections 233 and 809 of the 2010 Standards.           seats on temporary platforms that, when
                                                   transient lodging requirements to allow                    Section 35.151(f) uses the term ‘‘sleeping         removed, reveal conventional seating
                                                   students with mobility impairments to                   room’’ in lieu of the term ‘‘guest room,’’ which      underneath, or cover the wheelchair spaces
                                                   interact and socialize in a fully integrated            is the term used in the transient lodging             and companion seats with temporary
                                                   fashion.                                                standards. The Department is using this term          platforms on top of which they place risers
                                                      Two commenters supported the                         because it believes that, for the most part, it       of conventional seating. These platforms
                                                   Department’s proposed approach. One                     provides a better description of the sleeping         cover groups of conventional seats and are
                                                   commenter argued that the transient lodging             facilities used in a place of education than          used to provide groups of wheelchair seats
                                                   requirements in the 2004 ADAAG would                    ‘‘guest room.’’ The final rule states that the        and companion seats.
                                                   provide greater accessibility and increase the          Department intends the terms to be used                  Several commenters requested an
                                                   opportunity of students with disabilities to            interchangeably in the application of the             exception to the prohibition of the use of
                                                   participate fully in campus life. A second              transient lodging standards to housing at a           temporary platforms for public entities that
                                                   commenter generally supported the provision             place of education.                                   sell most of their tickets on a season-ticket or
                                                   of accessible dwelling units at places of                                                                     other multi-event basis. Such commenters
                                                   education, and pointed out that the relevant            Section 35.151(g) Assembly areas                      argued that they should be able to use
                                                   scoping in the International Building Code                 In the NPRM, the Department proposed               temporary platforms because they know, in
                                                   requires accessible units ‘‘consistent with             § 35.151(g) to supplement the assembly area           advance, that the patrons sitting in certain
                                                   hotel accommodations.’’                                 requirements of the 2004 ADAAG, which the             areas for the whole season do not need
                                                      The Department has considered the                    Department is adopting as part of the 2010            wheelchair spaces and companion seats. The
                                                   comments recommending the use of the                    Standards. The NPRM proposed at                       Department declines to adopt such an
                                                   residential facilities standards and                    § 35.151(g)(1) to require wheelchair spaces           exception. As it explained in detail in the
                                                   acknowledges that they require certain                  and companion seating locations to be                 NPRM, the Department believes that
                                                   features that are not included in the transient         dispersed to all levels of the facility and are       permitting the use of movable platforms that
                                                   lodging standards and that should be                    served by an accessible route. The                    seat four or more wheelchair users and their
                                                   required for housing provided at a place of             Department received no significant                    companions have the potential to reduce the
                                                   education. In addition, the Department notes            comments on this paragraph and has decided            number of available wheelchair seating
                                                   that since educational institutions often use           to adopt the proposed language with minor             spaces below the level required, thus
                                                   their academic housing facilities as short-             modifications. The Department has retained            reducing the opportunities for persons who
                                                   term transient lodging in the summers, it is            the substance of this section in the final rule       need accessible seating to have the same
                                                   important that accessible features be installed         but has clarified that the requirement applies        choice of ticket prices and amenities that are
                                                   at the outset. It is not realistic to expect that       to stadiums, arenas, and grandstands. In              available to other patrons in the facility. In
                                                   the educational institution will be able to             addition, the Department has revised the              addition, use of removable platforms may
                                                   adapt a unit in a timely manner in order to             phrase ‘‘wheelchair and companion seating             result in instances where last minute requests
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                                                   provide accessible accommodations to                    locations’’ to ‘‘wheelchair spaces and                for wheelchair and companion seating cannot
                                                   someone attending a one-week program                    companion seats.’’                                    be met because entire sections of accessible
                                                   during the summer.                                         Section 35.151(g)(1) ensures that there is         seating will be lost when a platform is
                                                      The Department has determined that the               greater dispersion of wheelchair spaces and           removed. See 73 FR 34466, 34493 (June 17,
                                                   best approach to this type of housing is to             companion seats throughout stadiums,                  2008). Further, use of temporary platforms
                                                   continue to require the application of                  arenas, and grandstands than would                    allows facilities to limit persons who need
                                                   transient lodging standards, but at the same            otherwise be required by sections 221 and             accessible seating to certain seating areas,
                                                   time to add several requirements drawn from             802 of the 2004 ADAAG. In some cases, the             and to relegate accessible seating to less
                                                   the residential facilities standards related to         accessible route may not be the same route            desirable locations. The use of temporary



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56217

                                                   platforms has the effect of neutralizing                   The Department proposed this bright-line           appropriate for his or her condition, and is
                                                   dispersion and other seating requirements               rule for two reasons: (1) The movie theater           thus denied quick access to staff with
                                                   (e.g., line of sight) for wheelchair spaces and         industry petitioned for such a rule; and (2)          expertise in that medical specialty and
                                                   companion seats. Cf. Independent Living                 the Department has acquired expertise on the          specialized equipment. While the Access
                                                   Resources v. Oregon Arena Corp., 1 F. Supp.             design of stadium style theaters from                 Board did not establish specific design
                                                   2d 1159, 1171 (D. Or. 1998) (holding that               litigation against several major movie theater        requirements for dispersion in the 2004
                                                   while a public accommodation may ‘‘infill’’             chains. See U.S. v. AMC Entertainment, 232            ADAAG, in response to extensive comments
                                                   wheelchair spaces with removable seats                  F. Supp. 2d 1092 (C.D. Ca. 2002), rev’d in            in support of dispersion it added an advisory
                                                   when the wheelchair spaces are not needed               part, 549 F. 3d 760 (9th Cir. 2008); U.S. v.          note, Advisory 223.1 General, encouraging
                                                   to accommodate individuals with                         Cinemark USA, Inc., 348 F. 3d 569 (6th Cir.           dispersion of accessible rooms within the
                                                   disabilities, under certain circumstances               2003), cert. denied, 542 U.S. 937 (2004). Two         facility so that accessible rooms are more
                                                   ‘‘[s]uch a practice might well violate the rule         industry commenters—at least one of whom              likely to be proximate to appropriate
                                                   that wheelchair spaces must be dispersed                otherwise supported this rule—requested               qualified staff and resources.
                                                   throughout the arena in a manner that is                that the Department explicitly state that this           In the NPRM, the Department sought
                                                   roughly proportionate to the overall                    rule does not apply retroactively to existing         additional comment on the issue, asking
                                                   distribution of seating’’). In addition, using          theaters. Although this rule on its face              whether it should require medical care
                                                   temporary platforms to convert unsold                   applies to new construction and alterations,          facilities, such as hospitals, to disperse their
                                                   wheelchair spaces to conventional seating               these commenters were concerned that the              accessible sleeping rooms, and if so, by what
                                                   undermines the flexibility facilities need to           rule could be interpreted to apply                    method (by specialty area, floor, or other
                                                   accommodate secondary ticket markets                    retroactively because of the Department’s             criteria). All of the comments the Department
                                                   exchanges as required by § 35.138(g) of the             statement in the ANPRM that this bright-line          received on this issue supported dispersing
                                                   final rule.                                             rule, although newly-articulated, does not            accessible sleeping rooms proportionally by
                                                       As the Department explained in the NPRM,            represent a ‘‘substantive change from the             specialty area. These comments, from
                                                   however, this provision was not designed to             existing line-of-sight requirements’’ of section      individuals, organizations, and a building
                                                   prohibit temporary seating that increases               4.33.3 of the 1991 Standards. See 69 FR               code association, argued that it would not be
                                                   seating for events (e.g., placing temporary             58768, 58776 (Sept. 30, 2004).                        difficult for hospitals to disperse rooms by
                                                   seating on the floor of a basketball court for             Although the Department intends for                specialty area, given the high level of
                                                   a concert). Consequently, the final rule, at
                                                                                                           § 35.151(g)(4) of this rule to apply                  regulation to which hospitals are subject and
                                                   § 35.151(g)(3), has been amended to clarify
                                                                                                           prospectively to new construction and                 the planning that hospitals do based on
                                                   that if an entire seating section is on a
                                                                                                           alterations, this rule is not a departure from,       utilization trends. Further, commenters
                                                   temporary platform for a particular event,
                                                                                                           and is consistent with, the line-of-sight             suggested that without a requirement, it is
                                                   then wheelchair spaces and companion seats
                                                   may be in that seating section. However,                requirements in the 1991 Standards. The               unlikely that hospitals would disperse the
                                                   adding a temporary platform to create                   Department has always interpreted the line-           rooms. In addition, concentrating accessible
                                                   wheelchair spaces and companion seats that              of-sight requirements in the 1991 Standards           rooms in one area perpetuates segregation of
                                                   are otherwise dissimilar from nearby fixed              to require viewing angles provided to patrons         individuals with disabilities, which is
                                                   seating and then simply adding a small                  who use wheelchairs to be comparable to               counter to the purpose of the ADA.
                                                   number of additional seats to the platform              those afforded to other spectators. Section              The Department has decided to require
                                                   would not qualify as an ‘‘entire seating                35.151(g)(4) merely represents the                    medical care facilities to disperse their
                                                   section’’ on the platform. In addition,                 application of these requirements to stadium-         accessible sleeping rooms in a manner that is
                                                   § 35.151(g)(3) clarifies that facilities may fill       style movie theaters.                                 proportionate by type of medical specialty.
                                                   in wheelchair spaces with removable seats                  One commenter from a trade association             This does not require exact mathematical
                                                   when the wheelchair spaces are not needed               sought clarification whether § 35.151(g)(4)           proportionality, which at times would be
                                                   by persons who use wheelchairs.                         applies to stadium-style theaters with more           impossible. However, it does require that
                                                       The Department has been responsive to               than 300 seats, and argued that it should not         medical care facilities disperse their
                                                   assembly areas’ concerns about reduced                  since dispersion requirements apply in those          accessible rooms by medical specialty so that
                                                   revenues due to unused accessible seating.              theaters. The Department declines to limit            persons with disabilities can, to the extent
                                                   Accordingly, the Department has reduced                 this rule to stadium-style theaters with 300          practical, stay in an accessible room within
                                                   scoping requirements significantly—by                   or fewer seats; stadium-style theaters of all         the wing or ward that is appropriate for their
                                                   almost half in large assembly areas—and                 sizes must comply with this rule. So, for             medical needs. The language used in this
                                                   determined that allowing assembly areas to              example, stadium-style theaters that must             rule (‘‘in a manner that is proportionate by
                                                   infill unsold wheelchair spaces with readily            vertically disperse wheelchair and                    type of medical specialty’’) is more specific
                                                   removable temporary individual seats                    companion seats must do so within the                 than that used in the NPRM (‘‘in a manner
                                                   appropriately balances their economic                   parameters of this rule.                              that enables patients with disabilities to have
                                                   concerns with the rights of individuals with               The NPRM included a provision that                 access to appropriate specialty services’’) and
                                                   disabilities. See section 221.2 of the 2010             required assembly areas with more than                adopts the concept of proportionality
                                                   Standards.                                              5,000 seats to provide at least five wheelchair       proposed by the commenters. Accessible
                                                       For stadium-style movie theaters, in                spaces with at least three companion seats for        rooms should be dispersed throughout all
                                                   § 35.151(g)(4) of the NPRM the Department               each of those five wheelchair spaces. The             medical specialties, such as obstetrics,
                                                   proposed requiring placement of wheelchair              Department agrees with commenters who                 orthopedics, pediatrics, and cardiac care.
                                                   seating spaces and companion seats on a riser           asserted that group seating is better
                                                                                                                                                                 Section 35.151(i) Curb ramps
                                                   or cross-aisle in the stadium section of the            addressed through ticketing policies rather
                                                   theater and placement of such seating so that           than design and has deleted that provision               Section 35.151(e) on curb ramps in the
                                                   it satisfies at least one of the following              from this section of the final rule.                  1991 rule has been redesignated as
                                                   criteria: (1) It is located within the rear 60                                                                § 35.151(i). In the NPRM, the Department
                                                                                                           Section 35.151(h) Medical care facilities             proposed making a minor editorial change to
                                                   percent of the seats provided in the
                                                   auditorium; or (2) it is located within the area          In the 1991 title II regulation, there was no       this section, deleting the phrase ‘‘other sloped
                                                   of the auditorium where the vertical viewing            provision addressing the dispersion of                areas’’ from the two places in which it
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                                                   angles are between the 40th to 100th                    accessible sleeping rooms in medical care             appears in the 1991 title II regulation. In the
                                                   percentile of vertical viewing angles for all           facilities. The Department is aware, however,         NPRM, the Department stated that the phrase
                                                   seats in that theater as ranked from the first          of problems that individuals with disabilities        ‘‘other sloped areas’’ lacks technical
                                                   row (1st percentile) to the back row (100th             face in receiving full and equal medical care         precision. The Department received no
                                                   percentile). The vertical viewing angle is the          when accessible sleeping rooms are not                significant public comments on this
                                                   angle between a horizontal line                         adequately dispersed. When accessible rooms           proposal. Upon further consideration,
                                                   perpendicular to the seated viewer’s eye to             are not fully dispersed, a person with a              however, the Department has concluded that
                                                   the screen and a line from the seated viewer’s          disability is often placed in an accessible           the regulation should acknowledge that there
                                                   eye to the top of the screen.                           room in an area that is not medically                 are times when there are transitions from



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                                                   56218        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

                                                   sidewalk to road surface that do not                    comply with the 2004 ADAAG requirements                  The Department recognizes that there are
                                                   technically qualify as ‘‘curb ramps’’ (sloped           for scoping of residential units, which               some programs (such as the one identified by
                                                   surfaces that have a running slope that                 require that 5 percent, and no fewer than one,        the commenter), in which units are not
                                                   exceed 5 percent). Therefore, the Department            of the dwelling units provide mobility                designed and constructed until an individual
                                                   has decided not to delete the phrase ‘‘other            features, and that 2 percent, and no fewer            buyer is identified. In such cases, the public
                                                   sloped areas.’’                                         than one, of the dwelling units provide               entity is still obligated to comply with the
                                                                                                           communication features. See 2004 ADAAG                2010 Standards. In addition, the public entity
                                                   Section 35.151(j) Residential housing for               Section 233.3. These commenters argued that           must ensure that pre-identified buyers with
                                                   sale to individual owners                               the Department should not defer to HUD                mobility disabilities and visual and hearing
                                                      Although public entities that operate                because HUD has not yet adopted the 2004              disabilities are afforded the opportunity to
                                                   residential housing programs are subject to             ADAAG and there is ambiguity on the scope             buy the accessible units. Once the program
                                                   title II of the ADA, and therefore must                 of coverage of pre-built for sale units under         has identified buyers who need the number
                                                   provide accessible residential housing, the             HUD’s current section 504 regulations. In             of accessible units mandated by the 2010
                                                   1991 Standards did not contain scoping or               addition, these commenters expressed                  Standards, it may have to make reasonable
                                                   technical standards that specifically applied           concern that HUD’s current regulation, 24             modifications to its policies, practices, and
                                                   to residential housing units. As a result,              CFR 8.29, presumes that a prospective buyer           procedures in order to provide accessible
                                                   under the Department’s title II regulation,             is identified before design and construction          units to other buyers with disabilities who
                                                   these agencies had the choice of complying              begins so that disability features can be             request such units.
                                                   with UFAS, which contains specific scoping              incorporated prior to construction. These                The Department notes that the residential
                                                   and technical standards for residential                 commenters stated that State and Federally            facilities standards allow for construction of
                                                   housing units, or applying the ADAAG                    funded homeownership programs typically               units with certain features of adaptability.
                                                   transient lodging standards to their housing.           do not identify prospective buyers before             Public entities that are concerned that fully
                                                   Neither UFAS nor the 1991 Standards                     construction has commenced. One                       accessible units are less marketable may
                                                   distinguish between residential housing                 commenter stated that, in its experience,             choose to build these units to include the
                                                   provided for rent and those provided for sale           when public entities build accessible for-sale        allowable adaptable features, and then adapt
                                                   to individual owners. Thus, under the 1991              units, they often sell these units through a          them at their own expense for buyers with
                                                   title II regulation, public entities that               lottery system that does not make any effort          mobility disabilities who need accessible
                                                   construct residential housing units to be sold          to match persons who need the accessible              units. For example, features such as grab bars
                                                   to individual owners must ensure that some              features with the units that have those               are not required but may be added by the
                                                   of those units are accessible. This                     features. Thus, accessible units are often sold       public entity if needed by the buyer at the
                                                   requirement is in addition to any                       to persons without disabilities. This                 time of purchase and cabinets under sinks
                                                   accessibility requirements imposed on                   commenter encouraged the Department to                may be designed to be removable to allow
                                                   housing programs operated by public entities            make sure that accessible for-sale units built        access to the required knee space for a
                                                   that receive Federal financial assistance from          or funded by public entities are placed in a          forward approach.
                                                   Federal agencies such as HUD.                           separate lottery restricted to income-eligible           The Department agrees with the
                                                      The 2010 Standards contain scoping and               persons with disabilities.                            commenters that covered entities may have
                                                   technical standards for residential dwelling               Two commenters recommended that the                to make reasonable modifications to their
                                                   units. However, section 233.3.2 of the 2010             Department develop rules for four types of            policies, practices, and procedures in order
                                                   Standards specifically defers to the                    for-sale projects: single family pre-built            to ensure that when they offer pre-built
                                                   Department and to HUD, the standard-setting             (where buyer selects the unit after                   accessible residential units for sale, the units
                                                   agency under the ABA, to decide the                     construction), single family post-built (where        are offered in a manner that gives access to
                                                   appropriate scoping for those residential               the buyer chooses the model prior to its              those units to persons with disabilities who
                                                   dwelling units built by or on behalf of public          construction), multi-family pre-built, and            need the features of the units and who are
                                                   entities with the intent that the finished units        multi-family post-built. These commenters             otherwise eligible for the housing program.
                                                   will be sold to individual owners. These                recommended that the Department require               This may be accomplished, for example, by
                                                   programs include, for example, HUD’s public             pre-built units to comply with the 2004               adopting preferences for accessible units for
                                                   housing and HOME programs as well as                    ADAAG 233.1 scoping requirements. For                 persons who need the features of the units,
                                                   State-funded programs to construct units for            post-built units, the commenters                      holding separate lotteries for accessible units,
                                                   sale to individuals. In the NPRM, the                   recommended that the Department require all           or other suitable methods that result in the
                                                   Department did not make a specific proposal             models to have an alternate design with               sale of accessible units to persons who need
                                                   for this scoping. Instead, the Department               mobility features and an alternate design             the features of such units. In addition, the
                                                   stated that after consultation and                      with communications features in compliance            Department believes that units designed and
                                                   coordination with HUD, the Department                   with 2004 ADAAG. Accessible models                    constructed or altered that comply with the
                                                   would make a determination in the final rule.           should be available at no extra cost to the           requirements for residential facilities and are
                                                   The Department also sought public comment               buyer. One commenter recommended that, in             offered for sale to individuals must be
                                                   on this issue stating that ‘‘[t]he Department           addition to required fully accessible units, all      provided at the same price as units without
                                                   would welcome recommendations from                      ground floor units should be readily                  such features.
                                                   individuals with disabilities, public housing           convertible for accessibility or for sensory
                                                   authorities, and other interested parties that          impairments technology enhancements.                  Section 35.151(k) Detention and
                                                   have experience with these programs. Please                The Department believes that consistent            correctional facilities
                                                   comment on the appropriate scoping for                  with existing requirements under title II,              The 1991 Standards did not contain
                                                   residential dwelling units built by or on               housing programs operated by public entities          specific accessibility standards applicable to
                                                   behalf of public entities with the intent that          that design and construct or alter residential        cells in correctional facilities. However,
                                                   the finished units will be sold to individual           units for sale to individual owners should            correctional and detention facilities operated
                                                   owners.’’ 73 FR 34466, 34492 (June 17, 2008).           comply with the 2010 Standards, including             by or on behalf of public entities have always
                                                      All of the public comments received by the           the requirements for residential facilities in        been subject to the nondiscrimination and
                                                   Department in response to this question were            sections 233 and 809. These requirements              program accessibility requirements of title II
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                                                   supportive of the Department’s ensuring that            will ensure that a minimum of 5 percent of            of the ADA. The 2004 ADAAG established
                                                   the residential standards apply to housing              the units, but no fewer than one unit, of the         specific requirements for the design and
                                                   built on behalf of public entities with the             total number of residential dwelling units            construction and alterations of cells in
                                                   intent that the finished units would be sold            will be designed and constructed to be                correctional facilities for the first time.
                                                   to individual owners. The vast majority of              accessible for persons with mobility                    Based on complaints received by the
                                                   commenters recommended that the                         disabilities. At least 2 percent, but no fewer        Department, investigations, and compliance
                                                   Department require that projects consisting of          than one unit, of the total number of                 reviews of jails, prisons, and other detention
                                                   five or more units, whether or not the units            residential dwelling units shall provide              and correctional facilities, the Department
                                                   are located on one or multiple locations,               communication features.                               has determined that many detention and



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                              56219

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



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                                                   Similarly, a large county sheriff’s department          Guidelines for Design, Construction, and              that are unlicensed. A disability advocacy
                                                   advised that the 2 percent requirement far              Alteration of Federal Bureau of Prisons (Oct.         group and a number of other commenters
                                                   exceeds the need at its detention facility,             31, 2006).                                            recommended that the Department expand
                                                   where the average age of the population is 32.             The Department believes that a 3 percent           the application of section 232.4 to apply to
                                                   This commenter stressed that the regulations            accessible requirement is reasonable.                 all such facilities in detention and
                                                   need to address the differences between a               Moreover, it does not believe it should               correctional facilities, regardless of licensure.
                                                   local detention facility with low average               impose a higher percentage on detention and           They recommended that whenever a
                                                   lengths of stay as opposed to a State prison            corrections facilities than it utilizes for its       correctional facility has a program that is
                                                   housing inmates for lengthy periods. This               own facilities. Thus, the Department has              addressed specifically in the 2004 ADAAG,
                                                   commenter asserted that more stringent                  adopted a 3 percent requirement in                    such as a long-term care facility, the 2004
                                                   requirements will raise construction costs by           § 35.151(k) for both new construction and             ADAAG scoping and design features should
                                                   requiring modifications that are not needed.            alterations. The Department notes that the 3          apply for those elements. Similarly, a
                                                   If more stringent requirements are adopted,             percent requirement is a minimum. As                  building code organization noted that its
                                                   the commenter suggested that they apply                 corrections systems plan for new facilities or        percentage requirements for accessible units
                                                   only to State and Federal prisons that house            alterations, the Department urges planners to         is based on what occurs in the space, not on
                                                   prisoners sentenced to long terms. The                  include numbers of inmates with disabilities          the building type.
                                                   Department notes that a prisoner with a                 in their population projections in order to              The Department is persuaded by these
                                                   mobility disability needs a cell with mobility          take the necessary steps to provide a                 comments and has added § 35.151(k)(3),
                                                   features regardless of the length of                    sufficient number of accessible cells to meet         which states that ‘‘[w]ith respect to medical
                                                   incarceration. However, the length of                   inmate needs.                                         and long-term care facilities in jails, prisons,
                                                   incarceration is most relevant in addressing               Dispersion of Cells. The NPRM did not              and other detention and correctional
                                                   the needs of an aging population.                       contain express language addressing                   facilities, public entities shall apply the 2010
                                                      The overwhelming majority of commenters              dispersion of cells in a facility. However,           Standards technical and scoping
                                                   responded that the 2 percent ADAAG                      Advisory 232.2 of the 2004 ADAAG                      requirements for those facilities irrespective
                                                   requirement is inadequate to meet the needs             recommends that ‘‘[a]ccessible cells or rooms         of whether those facilities are licensed.’’
                                                   of the incarcerated. Many commenters                    should be dispersed among different levels of
                                                   suggested that the requirement be expanded              security, housing categories, and holding             Section 35.152 Detention and correctional
                                                   to apply to each area, type, use, and class of          classifications (e.g., male/female and adult/         facilities—program requirements
                                                   cells in a facility. They asserted that if a            juvenile) to facilitate access.’’ In explaining          As noted in the discussion of § 35.151(k),
                                                   facility has separate areas for specific                the basis for recommending, but not                   the Department has determined that inmates
                                                   programs, such as a dog training program or             requiring, this type of dispersal, the Access         with mobility and other disabilities in
                                                   a substance abuse unit, each of these areas             Board stated that ‘‘[m]any detention and              detention and correctional facilities do not
                                                   should also have 2 percent accessible cells             correctional facilities are designed so that          have equal access to prison services. The
                                                   but not less than one. These same                       certain areas (e.g., ‘shift’ areas) can be            Department’s concerns are based not only on
                                                   commenters suggested that 5–7 percent of                adapted to serve as different types of housing        complaints it has received, but the
                                                   cells should be accessible to meet the needs            according to need’’ and that ‘‘[p]lacement of         Department’s substantial experience in
                                                   of both an aging population and the larger              accessible cells or rooms in shift areas may          investigations and compliance reviews of
                                                   number of inmates with mobility disabilities.           allow additional flexibility in meeting               jails, prisons, and other detention and
                                                   One organization recommended that the                   requirements for dispersion of accessible             correctional facilities. Based on that review,
                                                   requirement be increased to 5 percent                   cells or rooms.’’                                     the Department has found that many
                                                   overall, and that at least 2 percent of each               The Department notes that inmates are              detention and correctional facilities have too
                                                   type and use of cell be accessible. Another             typically housed in separate areas of                 few or no accessible cells, toilets, and shower
                                                   commenter recommended that 10 percent of                detention and correctional facilities based on        facilities to meet the needs of their inmates
                                                   cells be accessible. An organization with               a number of factors, including their                  with mobility disabilities. These findings,
                                                   extensive corrections experience noted that             classification level. In many instances,              coupled with statistics regarding the current
                                                   the integration mandate requires a sufficient           detention and correctional facilities have            percentage of inmates with mobility
                                                   number and distribution of accessible cells so          housed inmates in inaccessible cells, even            disabilities and the changing demographics
                                                   as to provide distribution of locations                 though accessible cells were available                of the inmate population reflecting thousands
                                                   relevant to programs to ensure that persons             elsewhere in the facility, because there were         of prisoners serving life sentences and
                                                   with disabilities have access to the programs.          no cells in the areas where they needed to            increasingly large numbers of aging inmates
                                                      Through its investigations and compliance            be housed, such as in administrative or               who are not eligible for parole, led the
                                                   reviews, the Department has found that in               disciplinary segregation, the women’s section         Department to conclude that a new
                                                   most detention and correctional facilities, a           of the facility, or in a particular security          regulation was necessary to address these
                                                   2 percent accessible cell requirement is                classification area.                                  concerns.
                                                   inadequate to meet the needs of the inmate                 The Department received a number of                   In the NPRM, the Department proposed a
                                                   population with disabilities. That finding is           comments stating that dispersal of accessible         new section, § 35.152, which combined a
                                                   supported by the majority of the commenters             cells together with an adequate number of             range of provisions relating to both program
                                                   that recommended a 5–7 percent                          accessible cells is necessary to prevent              accessibility and application of the proposed
                                                   requirement. Indeed, the Department itself              inmates with disabilities from placement in           standards to detention and correctional
                                                   requires more than 2 percent of the cells to            improper security classification and to               facilities. As mentioned above, in the final
                                                   be accessible at its own corrections facilities.        ensure integration. Commenters                        rule, the Department is placing those
                                                   The Federal Bureau of Prisons is subject to             recommended modification of the scoping               provisions that refer to design, construction,
                                                   the requirements of the 2004 ADAAG                      requirements to require a percentage of               and alteration of detention and correction
                                                   through the General Services                            accessible cells in each program,                     facilities in new paragraph (k) in § 35.151
                                                   Administration’s adoption of the 2004                   classification, use or service area. The              dealing with new construction and
                                                   ADAAG as the enforceable accessibility                  Department is persuaded by these comments.            alterations for covered entities. Those
                                                   standard for Federal facilities under the               Accordingly, § 35.151(k)(1) and (k)(2) of the         portions of the final rule that address other
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                                                   Architectural Barriers Act of 1968. 70 FR               final rule require accessible cells in each           program requirements remain in § 35.152.
                                                   67786, 67846–47 (Nov. 8, 2005). However, in             classification area.                                     The Department received many comments
                                                   order to meet the needs of inmates with                    Medical facilities. The NPRM also did not          in response to the program accessibility
                                                   mobility disabilities, the Bureau of Prisons            propose language addressing the application           requirements in proposed § 35.152. These
                                                   has elected to increase that percentage and             of the 2004 ADAAG to medical and long-term            comments are addressed below.
                                                   require that 3 percent of inmate housing at             care facilities in correctional and detention            Facilities operated through contractual,
                                                   its facilities be accessible. Bureau of Prisons,        facilities. The provisions of the 2004 ADAAG          licensing, or other arrangements with other
                                                   Design Construction Branch, Design                      contain requirements for licensed medical             public entities or private entities. The
                                                   Guidelines, Attachment A: Accessibility                 and long-term care facilities, but not those          Department is aware that some public



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56221

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



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                                                   56222        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                             56223

                                                   emergency alarm systems are only a small                statute and the regulation. Section 35.160 in         auxiliary aids and services must be provided
                                                   part of the amplified information that                  the final rule codifies the Department’s              if the companion is an appropriate person
                                                   inmates need. One large association                     longstanding policies in this area and                with whom the public entity should or
                                                   commented that it receives many inmate                  includes provisions that reflect technological        would communicate.
                                                   complaints that announcements are made                  advances in the area of auxiliary aids and               Examples of such situations include back-
                                                   over loudspeakers or public address systems,            services.                                             to-school nights or parent-teacher
                                                   and that inmates who do not hear                           In the NPRM, the Department proposed               conferences at a public school. If the faculty
                                                   announcements for inmate count or other                 adding ‘‘companion’’ to the scope of coverage         writes on the board or otherwise displays
                                                   instructions face disciplinary action for               under § 35.160 to codify the Department’s             information in a visual context during a back-
                                                   failure to comply. They asserted that inmates           longstanding position that a public entity’s          to-school night, this information must be
                                                   who miss announcements miss meals,                      obligation to ensure effective communication          communicated effectively to parents or
                                                   exercise, showers, and recreation. They                 extends not just to applicants, participants,         guardians who are blind or have low vision.
                                                   argued that systems that deliver audible                and members of the public with disabilities,          At a parent-teacher conference, deaf parents
                                                   announcements, signals, and emergency                   but to companions as well, if any of them are         or guardians must be provided with
                                                   alarms must be made accessible and that                 individuals with disabilities. The NPRM               appropriate auxiliary aids and services to
                                                   TTYs must be made available. Commenters                 defined companion as a person who is a                communicate effectively with the teacher and
                                                   also recommended that correctional facilities           family member, friend, or associate of a              administrators. It makes no difference that
                                                   should provide access to advanced forms of              program participant, who, along with the              the child who attends the school does not
                                                   telecommunications. Additional commenters               program participant, is ‘‘an appropriate              have a disability. Likewise, when a deaf
                                                   noted that few persons now use TTYs,                    person with whom the public entity should             spouse attempts to communicate with public
                                                   preferring instead to communicate by email,             communicate.’’ 73 FR 34466, 34507 (June 17,           social service agencies about the services
                                                   texting, and videophones.                               2008).                                                necessary for the hearing spouse, appropriate
                                                      The Department agrees with the                          Many commenters supported inclusion of             auxiliary aids and services to the deaf spouse
                                                   commenters that correctional facilities and             ‘‘companions’’ in the rule, and urged even            must be provided by the public entity to
                                                   jails must ensure that inmates who are deaf             more specific language about public entities’         ensure effective communication. Parents or
                                                   or hard of hearing actually receive the same            obligations. Some commenters asked the                guardians, including foster parents, who are
                                                   information provided to other inmates. The              Department to clarify that a companion with           individuals with disabilities, may need to
                                                   Department believes, however, that the                  a disability may be entitled to effective             interact with child services agencies on
                                                   reasonable modifications, program access,               communication from a public entity even               behalf of their children; in such a
                                                   and effective communications requirements               though the applicants, participants, or               circumstance, the child services agencies
                                                   of title II are sufficient to address the needs         members of the general public seeking access          would need to provide appropriate auxiliary
                                                   of individual deaf and hard of hearing                  to, or participating in, the public entity’s          aids and services to those parents or
                                                   inmates, and as a result, declines to add               services, programs, or activities are not             guardians.
                                                   specific requirements for communications                individuals with disabilities. Others                    Effective communication with companions
                                                   features in cells for deaf and hard of hearing          requested that the Department explain the             is particularly critical in health care settings
                                                   inmates at this time. The Department notes              circumstances under which auxiliary aids              where miscommunication may lead to
                                                   that as part of its ongoing enforcement of the          and services should be provided to                    misdiagnosis and improper or delayed
                                                   reasonable modifications, program access,               companions. Still others requested explicit           medical treatment. The Department has
                                                   and effective communications requirements               clarification that where the individual               encountered confusion and reluctance by
                                                   of title II, the Department has required                seeking access to or participating in the             medical care providers regarding the scope of
                                                   correctional facilities and jails to provide            public entity’s program, services, or activities      their obligation with respect to such
                                                   communication features in cells serving deaf            requires auxiliary aids and services, but the         companions. Effective communication with a
                                                   and hard of hearing inmates.                            companion does not, the public entity may             companion is necessary in a variety of
                                                                                                           not seek out, or limit its communications to,         circumstances. For example, a companion
                                                   Subpart E—Communications                                the companion instead of communicating                may be legally authorized to make health
                                                                                                           directly with the individual with a disability        care decisions on behalf of the patient or may
                                                   Section 35.160       Communications.                    when it would be appropriate to do so.                need to help the patient with information or
                                                      Section 35.160 of the 1991 title II                     Some in the medical community objected             instructions given by hospital personnel. A
                                                   regulation requires a public entity to take             to the inclusion of any regulatory language           companion may be the patient’s next-of-kin
                                                   appropriate steps to ensure that                        regarding companions, asserting that such             or health care surrogate with whom hospital
                                                   communications with applicants,                         language is overbroad, seeks services for             personnel must communicate about the
                                                   participants, and members of the public with            individuals whose presence is not required            patient’s medical condition. A companion
                                                   disabilities are as effective as                        by the public entity, is not necessary for the        could be designated by the patient to
                                                   communications with others. 28 CFR                      delivery of the services or participation in the      communicate with hospital personnel about
                                                   35.160(a). In addition, a public entity must            program, and places additional burdens on             the patient’s symptoms, needs, condition, or
                                                   ‘‘furnish appropriate auxiliary aids and                the medical community. These commenters               medical history. Or the companion could be
                                                   services where necessary to afford an                   asked that the Department limit the public            a family member with whom hospital
                                                   individual with a disability an equal                   entity’s obligation to communicate effectively        personnel normally would communicate.
                                                   opportunity to participate in, and enjoy the            with a companion to situations where such                Accordingly, § 35.160(a)(1) in the final rule
                                                   benefits of, a service, program, or activity            communications are necessary to serve the             now reads, ‘‘[a] public entity shall take
                                                   conducted by a public entity.’’ 28 CFR                  interests of the person who is receiving the          appropriate steps to ensure that
                                                   35.160(b)(1). Moreover, the public entity               public entity’s services.                             communications with applicants,
                                                   must give ‘‘primary consideration to the                   After consideration of the many comments           participants, members of the public, and
                                                   requests of the individual with disabilities’’          on this issue, the Department believes that           companions with disabilities are as effective
                                                   in determining what type of auxiliary aid and           explicit inclusion of ‘‘companions’’ in the           as communications with others.’’ Section
                                                   service is necessary. 28 CFR 35.160(b)(2).              final rule is appropriate to ensure that public       35.160(a)(2) further defines ‘‘companion’’ as
                                                      Since promulgation of the 1991 title II              entities understand the scope of their                ‘‘a family member, friend, or associate of an
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                                                   regulation, the Department has investigated             effective communication obligations. There            individual seeking access to a service,
                                                   hundreds of complaints alleging failures by             are many situations in which the interests of         program, or activity of a public entity, who,
                                                   public entities to provide effective                    program participants without disabilities             along with the individual, is an appropriate
                                                   communication, and many of these                        require that their companions with                    person with whom the public entity should
                                                   investigations resulted in settlement                   disabilities be provided effective                    communicate.’’ Section 35.160(b)(1) clarifies
                                                   agreements and consent decrees. From these              communication. In addition, the program               that the obligation to furnish auxiliary aids
                                                   investigations, the Department has concluded            participant need not be physically present to         and services extends to companions who are
                                                   that public entities sometimes misunderstand            trigger the public entity’s obligations to a          individuals with disabilities, whether or not
                                                   the scope of their obligations under the                companion. The controlling principle is that          the individual accompanied also is an



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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                              56225

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



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                                                   56226        Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations

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



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                                                                Federal Register / Vol. 75, No. 178 / Wednesday, September 15, 2010 / Rules and Regulations                                            56227

                                                   information broadcast over a PA system                  should only be required in stadiums built             of widely used telecommunications
                                                   should be captioned in real time at all                 after the effective date of the regulation. For       technology that should be as accessible to
                                                   facilities in order to provide effective                stadiums with existing systems that allow for         persons who are deaf or hard of hearing as
                                                   communication and that a requirement only               real-time captioning, one commenter posited           they are to others, and has amended the
                                                   to provide emergency and safety information             that dedicating the system exclusively to             section in the final rule to include the
                                                   would not be sufficient. A few organizations            real-time captioning would lead to an annual          additional features.
                                                   for persons with disabilities commented that            loss of between $2 and $3 million per                    Many commenters, including advocates
                                                   installation of new systems should not be               stadium in revenue from advertising                   and persons with disabilities, as well as State
                                                   required, but that all systems within existing          currently running in that space.                      agencies and national organizations, asked
                                                   facilities that are capable of providing                   After carefully considering the wide range         that all automated systems have an option for
                                                   captioning must be utilized to the maximum              of public comments on this issue, the                 the caller to bypass the automated system
                                                   extent possible to provide captioning of as             Department has concluded that the final rule          and speak to a live person who could
                                                   much information as possible. Several                   will not provide additional requirements for          communicate using relay services. The
                                                   organizations representing persons with                 effective communication or emergency                  Department understands that automated
                                                   disabilities commented that all facilities must         information provided at sports stadiums at            telecommunications systems typically do not
                                                   include in safety planning the requirement to           this time. The 1991 title II and title III            offer the opportunity to avoid or bypass the
                                                   caption all aurally-provided information for            regulations and statutory requirements are            automated system and speak to a live person.
                                                   patrons with communication disabilities.                not in any way affected by this decision. The         The Department believes that at this time it
                                                   Some advocates suggested that demand for                decision to postpone rulemaking on this               is inappropriate to add a requirement that all
                                                   captions will only increase as the number of            complex issue is based on a number of                 such systems provide an override capacity
                                                   deaf and hard of hearing persons grows with             factors, including the multiple layers of             that permits a TTY or relay caller to speak
                                                   the aging of the general population and with            existing regulation by various agencies and           with a live clerk on a telecommunications
                                                   increasing numbers of veterans returning                levels of government, and the wide array of           relay system. However, if a system already
                                                   from war with disabilities. Multiple                    information, requests, and recommendations            provides an option to speak to a person, that
                                                   comments noted that the captioning would                related to developing technology offered by           system must accept TTY and relay calls and
                                                   benefit others as well as those with                    the public. In addition, there is a huge variety      must not disconnect or refuse to accept such
                                                   communication disabilities.                             of covered entities, information and                  calls.
                                                      By contrast, venue owners and operators              communication systems, and differing                     Other comments from advocacy
                                                   and others commented that the action on the             characteristics among sports stadiums. The            organizations and individuals urged the
                                                   sports field is self-explanatory and does not           Department has concluded that further                 Department to require specifications for the
                                                   require captioning and they objected to an              consideration and review would be prudent             operation of such systems that would involve
                                                   explicit requirement to provide real-time               before it issues specific regulatory                  issuing technical requirements for encoding
                                                   captioning for all information broadcast on             requirements.                                         and storage of automated text, as well as
                                                   the PA system at a sporting event. Other                                                                      controls for speed, pause, rewind, and repeat,
                                                   commenters objected to requiring captioning             Section 35.161 Telecommunications.                    and prompts without any background noise.
                                                   even for emergency and safety information                  The Department proposed to retitle this            The same comments urged that these
                                                   over the scoreboard rather than through some            section ‘‘Telecommunications’’ to reflect             requirements should be consistent with a
                                                   other means. By contrast, venue operators,              situations in which the public entity must            pending advisory committee report to the
                                                   State government agencies, and some model               provide an effective means to communicate             Access Board, submitted in April 2008. See
                                                   code groups, including NFPA, commented                  by telephone for individuals with                     Telecommunications and Electronic
                                                   that emergency and safety information must              disabilities. First, the NPRM proposed                Information Technology Advisory
                                                   be provided in an accessible format and that            redesignating § 35.161 as § 35.161(a) and             Committee, Report to the Access Board
                                                   public safety is a paramount concern. Other             replacing the term ‘‘Telecommunications               Refreshed Accessibility Standards and
                                                   commenters argued that the best method to               devices for the deaf (TDD)’’ with ‘‘Text              Guidelines in Telecommunications and
                                                   deliver safety and emergency information                telephones (TTY).’’ Public comment was                Electronic and Information Technology (Apr.
                                                   would be television monitors showing local              universally supportive of this change in              2008) available at http://www.access-board.
                                                   TV broadcasts with captions already                     nomenclature to TTY.                                  gov/sec508/refresh/report/. The Department
                                                   mandated by the FCC. Some commenters                       In the NPRM, at § 35.161(b), the                   is declining at this time to preempt ongoing
                                                   posited that the most reliable information              Department addressed automated-attendant              consideration of these issues by the Board.
                                                   about a major emergency would be provided               systems that handle telephone calls                   Instead, the Department will monitor activity
                                                   on the television news broadcasts. Several              electronically. Often individuals with                by the Board. The Department is convinced
                                                   commenters argued that television monitors              disabilities, including persons who are deaf          that the general requirement to make such
                                                   may be located throughout the facility,                 or hard of hearing, are unable to use such            automated systems usable by persons with
                                                   improving line of sight for patrons, some of            automated systems. Some systems are not               disabilities is appropriate at this time and
                                                   whom might not be able to see the scoreboard            compatible with TTYs or the                           title II entiti