Billing
Code: 4410-13
DEPARTMENT OF JUSTICE
Civil Rights Division
28 CFR Parts 35 and 36
CRT Docket No. 2004-DRS01; AG Order No.
2736-2004
RIN 1190-AA46 and 1190-AA44
Nondiscrimination on the Basis of
Disability in State and Local Government Services; Nondiscrimination on the
Basis of Disability by Public Accommodations and in Commercial Facilities
AGENCY: Department of Justice, Civil Rights
Division.
ACTION: Advance notice of proposed rulemaking.
SUMMARY: The Department of Justice
(Department) is issuing this Advance Notice of Proposed Rulemaking (ANPRM) in
order to begin the process of adopting Parts I and III of the revised
guidelines implementing the Americans with Disabilities Act of 1990 (ADA) and
the Architectural Barriers Act of 1968 (ABA)[1],
published by the Architectural and Transportation Barriers Compliance Board
(Access Board) on July 23, 2004, at 69 FR 44083.[2] The ADA requires the Department to adopt
enforceable accessibility standards that are “consistent with the minimum
guidelines and requirements issued by the Architectural and Transportation
Barriers Compliance Board” (42 U.S.C. 12186).
The Department adopts and enforces standards consistent with the Access
Board’s guidelines under the Department’s regulations implementing Title II
(Subtitle A) and Title III of the ADA as the ADA Standards for Accessible
Design (ADA Standards). Prior to their
adoption by the Department, the revised Access Board guidelines are effective
only as guidance to the Department; they have no legal effect on the public
until the Department issues a final rule adopting revised ADA Standards. In this ANPRM, the current, legally
enforceable ADA Standards will be referred to as the “current ADA Standards,”
while the revisions that will be proposed in the NPRM, based on Parts I and III
of the revised ADA and ABA Accessibility Guidelines, will be referred to as the
“revised ADA Standards.” The Access
Board’s revised ADA Accessibility Guidelines will be cited as “ADAAG.”
The purpose of this
ANPRM is twofold: to solicit public
input on various issues relating to the potential application of the revisions
to the ADA Standards and to obtain background information for the regulatory
assessment that the Department must prepare in the process of adopting the
revisions to the ADA Standards.
DATES: All comments must be received
by [insert date 120 days after publication in the FEDERAL REGISTER].
ADDRESSES: Submit electronic comments and
other data to adaanprm.org or www.regulations.gov. See SUPPLEMENTARY INFORMATION – Electronic
Submission of Comments and Electronic Access for file formats and other
information about electronic filing.
Address all written
comments concerning this ANPRM to P.O. Box 1032, Merrifield, VA 22116-1032.
FOR FURTHER INFORMATION CONTACT: Anne Beckman or Kate Nicholson, Attorneys,
Disability Rights Section, Civil Rights Division, U.S. Department of Justice,
at (202) 307-0663 (voice or TTY). This
is not a toll-free number. Information
may also be obtained from the Department’s toll-free ADA Information Line at
(800) 514-0301 (voice) or (800) 514-0383 (TTY).
You may obtain copies
of this rule in large print, audiotape, or computer disk by calling the ADA
Information Line at (800) 514-0301 (voice) and (800) 514-0383 (TTY). This rule is also available in an accessible
format on the ADA Home Page at www.ada.gov.
SUPPLEMENTARY INFORMATION:
Electronic Submission of Comments and
Electronic Access
You may submit
electronic comments to adaanprm.org or www.regulations.gov.
You may view an electronic version of
this proposed rule at www.regulations.gov. This rule is also available in an accessible
format on the ADA Home Page at www.ada.gov. When submitting comments electronically, you
must include CRT Docket No. 2004-DRS01 in the subject box and you must include
your full name and address.
Inspection
of Comments
All
comments will be available to the public online at adaanprm.org and,
by appointment, during normal business hours, at the office of the Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, located at
1425 New York Avenue, Suite 4039, Washington, D.C. 20005.
To arrange an appointment to review the comments, please contact the ADA
Information Line listed above.
Purpose
On July 26, 1990,
President George H.W. Bush signed into law the Americans with Disabilities Act
(42 U.S.C. 12101 et seq.), a comprehensive civil rights law prohibiting
discrimination on the basis of disability.
In 2001, President George W. Bush underscored the nation’s commitment to
ensuring the rights of over 50 million individuals with disabilities nationwide
by announcing the New Freedom Initiative (www.whitehouse.gov/infocus/newfreedom). The New Freedom Initiative builds upon the
legacy of the ADA by promoting improved access to assistive and universally
designed technology, educational opportunities, the workplace, and community
living for individuals with disabilities.
The New Freedom Initiative also expressly recognizes the importance of
ADA enforcement. The Access Board’s
publication of revised accessibility guidelines is the culmination of a
long-term effort to facilitate ADA compliance and enforcement by eliminating
inconsistencies among Federal accessibility requirements and between Federal accessibility
requirements and State and local building codes. In support of this effort, the Department is
announcing its intention to adopt, in a separate Notice of Proposed Rulemaking
(NPRM) to follow this ANPRM, standards consistent with Parts I and III of the
Access Board’s revised guidelines as the ADA Standards for Accessible
Design. To facilitate this process, the
Department is seeking public comment on the issues discussed in this notice.
The ADA and Department of Justice
Regulations
The ADA broadly
protects the rights of individuals with disabilities in employment, access to
State and local government services, places of public accommodation,
transportation, and other important areas of American life and, in addition,
requires that newly designed and constructed or altered public accommodations
and commercial facilities be readily accessible to and usable by individuals
with disabilities. Under the ADA, the
Department is responsible for issuing regulations to implement Title II and
Title III of the Act, except to the extent that transportation providers
subject to Title II or Title III are regulated by the Department of
Transportation.
Title II applies to
State and local government entities, and, in Subtitle A, protects qualified
individuals with disabilities from discrimination on the basis of disability in
services, programs, and activities provided by State and local government
entities. Title II extends the
prohibition of discrimination established by section 504 of the Rehabilitation
Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 794) (hereinafter,
Section 504), to all activities of State and local governments regardless of
whether these entities receive Federal financial assistance (42 U.S.C. 12131 et
seq.). Title III prohibits
discrimination on the basis of disability in the activities of places of public
accommodation (businesses that are generally open to the public and that fall
into one of twelve categories listed in the ADA, such as restaurants, movie
theaters, schools, day care facilities, recreation facilities, and doctors’
offices) and requires newly constructed or altered places of public
accommodation – as well as commercial facilities (privately owned,
nonresidential facilities like factories, warehouses, or office buildings) – to
comply with the ADA Standards (42 U.S.C. 12182 et seq.).
On July 26, 1991, the
Department issued its final rules implementing Title II and Title III, which
are codified at 28 CFR part 35 (Title II) and part 36 (Title III). Appendix A of the Title III regulation, at 28
CFR part 36, contains the current ADA Standards, which were based upon the
ADAAG published by the Access Board on the same date. Under the Department’s regulation
implementing Title III, places of public accommodation and commercial
facilities are required to comply with the current ADA Standards with respect
to newly constructed or altered facilities.
By contrast, under the regulation implementing Title II, State and local
government entities are currently permitted to choose to apply either the
requirements contained in the Uniform Federal Accessibility Standards (UFAS) or
those contained in the ADA Standards with respect to their newly constructed or
altered facilities. For greater
uniformity, when the Department proposes to adopt the revised ADA Standards,
the Department will also propose to withdraw the option of using UFAS under
Title II.
The Roles of the Access Board and the
Department of Justice
The Access Board was
established by section 502 of the Rehabilitation Act, 29 U.S.C. 792. The Board consists of thirteen public members
appointed by the President, of whom a majority must be individuals with
disabilities, and twelve Federal agencies designated by law, including the
Department of Justice and the Department of Transportation. The ADA requires the Access Board to “issue
minimum guidelines that shall supplement the existing Minimum Guidelines and
Requirements for Accessible Design for purposes of subchapters II and III of
this chapter . . . to ensure that buildings, facilities, rail passenger cars,
and vehicles are accessible, in terms of architecture and design,
transportation, and communication, to individuals with disabilities” (42 U.S.C.
12204). The ADA requires the Department
of Justice to issue regulations that include enforceable accessibility
standards applicable to facilities subject to Title II or Title III that are
consistent with the minimum guidelines issued by the Access Board (42 U.S.C.
12134, 12186).
The Department of
Justice was extensively involved in the development of the ADAAG.
As a Federal member of the Access Board, the Department voted to approve
the revised guidelines. Although the
enforceable standards issued by the Department under Title II and Title III
must be consistent with the minimum guidelines published by the Access Board,
it is the responsibility solely of the Department of Justice to promulgate
standards and to interpret and enforce those standards.
The ADA also requires
the Department to develop regulations with respect to existing facilities
subject to Title II (Subtitle A) and Title III.
How and to what extent the Access Board’s guidelines are used with
respect to the readily achievable barrier removal requirement applicable to
existing facilities under Title III of the ADA and with respect to the
provision of program accessibility under Title II of the ADA is solely within
the discretion of the Department of Justice.
The Revised Guidelines
The revised ADA and ABA
Accessibility Guidelines are the product of ten years of effort to modify and
update the current guidelines, reflecting compromise and the cooperative
efforts of a host of private and public entities. Part I provides scoping requirements for facilities
subject to the ADA; scoping is a term used in the revised guidelines to
describe requirements (set out in Parts I and II) that prescribe what elements
and spaces and, in some cases, how many, must comply with the technical
specifications set out in Part III. Part
II provides scoping requirements for facilities subject to the ABA, and Part
III provides uniform technical specifications for facilities subject to either
statute. This revised format is intended
to eliminate unintended conflicts between the two Federal accessibility standards
and to minimize conflicts between the Federal regulations and the model codes
that form the basis of many State and local building codes.
Since 1998, the Access
Board has amended ADAAG four times, adding specific guidelines in the following
areas: State and local government
facilities (63 FR 2000, Jan. 13, 1998); building elements designed for use by
children (63 FR 2060, Jan. 13, 1998); play areas (65 FR 62497, Oct. 18, 2000);
and recreation facilities (67 FR 56352, Sept. 3, 2002). These amendments to ADAAG have not previously
been adopted by the Department as ADA Standards.
The revisions to ADAAG
that were published by the Access Board on July 23, 2004, represented the
culmination of a lengthy review process.
In 1994, the Access Board began the process of updating the original
ADAAG by establishing an advisory committee comprised of members of the design
and construction industry, the building code community, State and local
government entities, and people with disabilities. In 1999, based largely on the report and
recommendations of this advisory committee,[3]
the Access Board issued a proposed rule to jointly update and revise its ADA
and ABA accessibility guidelines,
64 FR 62248-01 (Nov. 16, 1999). In response to its rule, the Access Board
received more than 2,500 comments from individuals with disabilities, affected
industries, State and local governments, and others. The Access Board provided further opportunity
for participation by holding public hearings throughout the nation. From the beginning, the Access Board also
worked vigorously to harmonize the ADA and ABA Accessibility Guidelines with
industry standards and model codes that form the basis for many state and local
building codes. The Access Board
released an interim draft of its guidelines to the public in April 2002, 67 FR
15509, in order to provide an opportunity for entities with model codes to
consider amendments that would promote further harmonization. By
the date of its final publication on July 23, 2004, 69 FR 44083, the revised
ADA Accessibility Guidelines had been the subject of extraordinary public
participation and review. Through this
ANPRM, the Department is announcing its intention to publish a proposed rule
that will adopt revised ADA Standards consistent with all of the amendments to
ADAAG since 1998.
The Department’s Request for Comments
Before publishing a
proposed rule, the Department is seeking public comment on the issues discussed
below. These issues have been divided
into four substantive sections in this ANPRM:
I. General Issues; II. Specific Issues; III. Miscellaneous Matters; and
IV. Regulatory Assessment Issues.
Because the Department,
as a member of the Access Board, has already had the opportunity to review
comments provided to the Access Board during its development of the amendments
to ADAAG, it is not necessary to resubmit those comments to the
Department. In addition to seeking
comments in response to the specific questions raised in this ANPRM, the
Department is particularly interested in receiving comments from covered
entities and from individuals with disabilities about the potential application
of the new or revised ADAAG requirements as they may apply to existing
facilities.
I. General Issues
The prospect of
adopting revised ADA Standards raises a number of general issues, ranging from
setting an effective date for the application of the revised ADA Standards to
determining what effect the new provisions will have on those elements of
facilities that are already in compliance with the current ADA Standards. Responses should clearly identify the
specific question being addressed according to the numbered questions in this
document.
Effective
Date: Time Period
Current Approach.
The Department must set an effective date for the application of the
revised ADA Standards to facilities that will be newly constructed or altered
following the publication of a final rule.
When the ADA was enacted, the effective dates for various provisions
were delayed in order to provide time for covered entities to become familiar
with their new obligations. Title II and
Title III of the ADA generally became effective on January 26, 1992, six months
after the regulations were published.
New construction under Title II and alterations under either Title II or
Title III had to comply with the design standards on that date. For new construction under Title III, the
requirements applied to facilities designed and constructed for first occupancy
after January 26, 1993 – eighteen months after the ADA Standards were published
by the Department.[4]
Possible New
Approaches. The Department is seeking comment on the
following three options.
Option I: Eighteen months.
Under this option, the effective date of the proposed revised ADA
Standards would be eighteen months after publication of the final rule – the
same time period used for the effective date of the ADA as a whole and for the
effective date of the current ADA Standards with respect to new construction
under Title III. Although this time
period has the advantage of ample precedent, it was originally used in the
context of a new law with which there was little or no familiarity or
experience. It may be inappropriately
long in the current context.
Option II: Six months. Under the second option, the
effective date of the proposed revised ADA Standards would be six months after
publication of the final rule – the time period used for newly constructed and
altered facilities subject to Subtitle A of Title II of the ADA and for altered
facilities subject to Title III. The
Department is considering this shorter period of time because the changes in
scoping and technical specifications to the revised ADA Standards are primarily
incremental. Further, those requirements
that are new (for elements and spaces that are not addressed in the current ADA
Standards) have been developed with extensive public participation and, in some
cases, have been available to the public through the amended editions of ADAAG
for several years. Finally, the new
format and organization of the revised ADA Standards would follow the format
and organization of the model codes and should be more familiar to covered
entities and design professionals than were the current ADA Standards when
adopted. The Department recognizes,
however, that because covered entities may have large ongoing construction
projects, such entities may need longer than this proposed six-month period to
incorporate the final changes to the revised ADA Standards into the design of
those projects.
Option III: Twelve months.
Under the third option, the effective date of the revised ADA Standards
would be twelve months after publication of the final rule. This option shortens the time period
envisioned by Option I, while providing more time than Option II in order to
allow for the integration of the revised ADA Standards into larger construction
projects.
Question 1.
Should the effective date of the proposed revised ADA Standards be
modeled on the effective date used to implement the current ADA Standards –
eighteen months after publication of the final rule – or a shorter period? If you favor a shorter period, please
indicate which period you favor and provide as much detail as possible in
support of your view.
Effective
Date: Triggering Event
The term “triggering
event” identifies the event or action that compels compliance with the ADA
Standards. The Department’s regulations
implementing Title II (28 CFR Part 35) and Title III of the ADA (28 CFR Part
36) establish the separate triggering events for new construction and
alterations that are explained below.
The Department’s experience to date indicates that these triggering
events work well; therefore, the Department is reluctant to change them. The Department recognizes, however, that
ADAAG now includes requirements for types of facilities, such as recreation and
play areas, that may pose design and construction issues compelling a different
result.
Current Approach.
Title III of the ADA and the implementing regulations provide that
covered entities must design and construct facilities “for first occupancy”
after the effective date in accordance with the current ADA Standards (28 CFR
36.401). Thus, for purposes of Title
III, the triggering event for newly constructed facilities, which is dictated
by statute, is first occupancy. The
Title III regulation defines “first occupancy” in relation to the completion of
the application for a building permit (which had to have been completed less
than twelve months before the effective date) and the issuance of a certificate
of occupancy (which had to have been completed after the effective date). With respect to altered facilities under
Title III, the triggering event is the date “physical alteration begins” (28
CFR 36.402(a)(2)). The implementing
regulation for Title II provides that the triggering event for both new
construction and alterations is the commencement of construction (28 CFR
35.151).
Possible Additional
Approach. To the extent applicable, the Department
intends to continue to use the same triggering event for each category
described above; that is, for new construction under Title III, first
occupancy;[5]
for alterations under Title III, when physical alteration begins; and under
Title II, for both new construction and alterations, the commencement of
construction. The Department is
concerned, however, that while these triggering events are appropriate for most
building situations, they may not necessarily be appropriate for all of them –
particularly if there are Title III facilities that do not require building
permits or that do not receive certificates of occupancy. The Department is concerned that, as applied
to these different types of facilities, the triggering events established under
the Title II and Title III regulations may be difficult to apply. Therefore, the Department is considering
“first use” as an alternative trigger for such facilities.
Question 2. The
Department is asking the public to identify any facilities for which the
current triggering events might prove unworkable. Are there facilities covered by the revised
ADA Standards that are subject to Title III for which first occupancy/physical
alteration do not apply in the new construction/alteration context? Please be specific about the type of facility
that would be affected, and what other event, such as “first use,” would work
better for each specified type of facility.
Are there facilities subject to Title II for which commencement of
construction would be difficult to apply?
Please be specific about the type of facility, and what other event,
such as “first use,” would work better for each specified type of facility.
Revised
ADA Standards: Existing Facilities
As noted above, the
Department anticipates proposing revised ADA Standards for new construction and
alterations that are consistent with ADAAG.
In making this proposal, one of the most important issues that the
Department must address is the effect that new or changed ADA Standards will
have on the continuing obligation of public accommodations to remove architectural,
transportation, and communication barriers in existing facilities to the extent
that it is readily achievable to do so.
This issue has not been addressed in ADAAG because it is outside of the
scope of the Access Board’s authority under the ADA. Responsibility for implementing Title III’s
requirement that public accommodations eliminate existing architectural
barriers where it is readily achievable to do so rests solely with the
Department of Justice.
The Department’s
current regulation implementing Title III of the ADA, 28 CFR 36.304,
establishes the requirements for readily achievable barrier removal by public
accommodations. Under this regulation,
the Department uses the ADA Standards as a guide to identify what constitutes an
architectural barrier. Once adopted, the
revised ADA Standards will present a new reference point for Title III’s
requirement to remove the architectural barriers in existing places of public
accommodation. The Department is
concerned that the incremental changes in ADAAG may place significant cost
burdens on businesses that have already complied with the ADA Standards in
their existing facilities. The
Department therefore seeks to strike an appropriate balance to ensure that
people with disabilities are able to achieve access to buildings and facilities
without imposing unnecessary financial burdens on existing places of public
accommodation with respect to their continuing obligations under the readily
achievable barrier removal requirement.
The Department is
considering several ways in which to reduce such financial burdens. One approach is to establish a safe harbor
under which the Department would deem compliance with scoping and technical
requirements in the current ADA Standards by elements in existing facilities to
constitute compliance with the ADA for purposes of meeting barrier removal
obligations. Another possible approach
is to reduce the scoping requirements for some of the new or changed
requirements as they are applied to existing facilities. Yet another potential approach is to
determine that certain new or revised technical requirements are inappropriate
for barrier removal and thus would not be required in satisfaction of a barrier
removal obligation. These approaches can
be used alone or in combination.
Option I: Safe harbor for compliant elements.
This option would provide a safe harbor for any elements of existing
facilities that are in compliance with the specific requirements (scoping and
technical specifications) of the current ADA Standards. For this purpose, compliance with the scoping
and technical requirements of the current ADA Standards would be determined on
an element-by-element basis in each covered facility; that is, only those
elements in each covered facility that are in compliance with applicable
scoping and technical requirements in the current ADA Standards would be
subject to the safe harbor. Elements
that are addressed for the first time in the revised ADA Standards, however,
would not be subject to the safe harbor.
Several considerations
support this approach. To the extent
places of public accommodation have complied with the specific scoping and
technical requirements of the current ADA Standards, it would be an inefficient
use of resources to require them to retrofit simply to comply with the revised
ADA Standards if the change provides only a minimal improvement in
accessibility. In addition, covered
entities would have a strong disincentive to comply voluntarily with the
readily achievable barrier removal requirement if, every time the ADA Standards
are revised, they are required once again to retrofit elements just to keep
pace with the current standards.
The Department
recognizes that there are also considerations opposing this approach. When adopted, some of the revised ADA
Standards will reflect up-to-date technologies that could provide critical
access for individuals with disabilities in certain contexts that is not
provided under the current ADA Standards.
While the incremental benefit of the revisions may be minimal with
respect to some elements, with respect to others the revised ADA Standards
could confer a significant benefit on some individuals with disabilities that
would be forgone if this option is adopted.
Because there are valid arguments on both sides of this issue, the
Department is seeking public comment on the issue of whether or not to provide
a safe harbor for design elements that comply with the current ADA Standards.
This safe harbor option
would, of course, have no effect on noncompliant elements. To the extent that elements in existing
facilities are not already in compliance with scoping and technical
requirements in the current ADA Standards, existing public accommodations would
be required to remove barriers, to the extent readily achievable, to make
elements comply with the revised ADA Standards.
Here is an example of
how that option would work. The current
ADA Standards address maximum side reach ranges, which are required to be no
higher than 54 inches. The revised ADA
Standards lower that range to 48 inches (ADAAG 308.3). If this option was adopted, a public
accommodation, e.g., a hotel chain, that had lowered its light switches to 54
inches or an entity that had lowered its pay phones to 54 inches would not be
required to do further barrier removal to reduce those elements to 48
inches. However, if this option was not
adopted, even existing facilities that had complied with the current ADA
Standards by ensuring that all required accessible elements were no higher than
54 inches would be required to retrofit those elements to lower them to 48
inches, assuming it was readily achievable to do so. Under both options, however, existing
facilities that had not complied with the current ADA Standards (whose required
accessible elements were, for example, located 60 inches high) would still be
required to undertake barrier removal to lower them to 48 inches, if readily
achievable.
This option involves
only those elements that are addressed by, and in compliance with, specific
requirements (scoping and technical specifications) in the current ADA
Standards. Elements that will be
addressed for the first time in the revised ADA Standards would not be eligible
for the safe harbor.
Question 3.
Should the Department provide any type of safe harbor so that elements
of facilities already in compliance with the current ADA Standards need not
comply with the revised ADA Standards?
Please provide as much detail as possible in support of your view.
Option II: Reduced scoping for specified requirements.
The scoping requirements in the revised ADA Standards apply to new
construction and alterations. Under a
reduced scoping option, the Department would, for the purposes of barrier
removal, provide an alternative set of reduced scoping requirements applicable
to certain specific new or changed technical requirements in the revised ADA
Standards. Examples of such new
technical requirements might include specific elements in the guidelines adopted
for play areas and recreation facilities.
For example, ADAAG now
requires a swimming pool over 300 feet in perimeter to have two accessible
means of entry to the pool (ADAAG 242.2).
The Department anticipates adopting new standards based on this
requirement. Under the current ADA Standards,
while there have been requirements addressing parking, the entrance to the
facility, common areas, and the route to the pool, there has been no scoping or
technical requirement addressing entry into and exit from the pool itself.
In implementing this
new requirement with respect to existing facilities pursuant to the readily
achievable barrier removal requirement, the Department is considering whether
it might be appropriate to state that providing only one accessible means of entry
to an existing pool satisfies the obligation for readily achievable barrier
removal. Even with this reduced scoping,
the readily achievable defense would still be available to covered entities
that cannot afford to provide even one means of entry. Under this option, however, even if it would
be readily achievable for that entity to provide two accessible means of entry,
it would only be required to provide one.
This is just one example of a requirement for which reduced scoping
might be appropriate. Others might
include the minimum number of accessible saunas and steam rooms required in
existing facilities or the minimum number of accessible boat slips required in
existing boating facilities.
Option III: Exemption from specified requirements.
The Department is also considering whether to identify particular
elements in the scoping and technical requirements in the revised ADA Standards
that will not be required for barrier removal.
Among the possibilities is the requirement that handrails on stairs must
meet accessibility requirements even in buildings that have elevator access
(ADAAG 210). Under this option, the
Department could determine that entities will not be required, for purposes of
compliance with the readily achievable barrier removal requirement, to make
handrails on stairs in an already existing elevator-accessible facility comply
with the scoping and technical requirements in the revised ADA Standards.
There is precedent for
this third option in the Department’s current regulations, which currently
exempt employee work areas from any obligation to retrofit pursuant to the
readily achievable barrier removal requirement.
Because the purpose of Title III is to ensure that public accommodations
are accessible to their clients and customers, it is the Department’s
longstanding view that the barrier removal requirement does not apply to areas
used exclusively as employee work areas (28 CFR part 36, App. B). The Department intends to continue this
exemption in the new regulations but notes that, notwithstanding this
exemption, Title I of the ADA requires employers to provide reasonable
accommodation for any employee with a disability. Thus, to the extent any provisions in the
revised ADA Standards address elements or spaces in work areas, compliance with
those provisions with respect to those elements or spaces will not be necessary
to comply with an entity’s obligations under the readily achievable barrier
removal requirement.
Question 4. Reducing or exempting specified requirements.
a.
Should the Department adopt Option II, and develop an alternative set of
reduced scoping requirements for the barrier removal obligation? If so, which specific requirements or
elements should be addressed? If
possible, provide detailed information about the costs or difficulties that
would be incurred in making the modification.
b. Should the Department adopt Option III, and
exempt certain scoping and technical requirements in the revised ADA Standards
that will not be required for barrier removal?
If so, which specific requirements or elements should be addressed? If possible, provide detailed information
about the costs or difficulties that would be incurred in making the
modification.
II. Specific Issues
The prospect of
adopting revised ADA Standards also raises a number of issues for the
Department with respect to specific provisions, ranging from whether altered
detention and correction cells should be required to be accessible to what
kinds of housing currently classified as transient should be reclassified as
residential.
Reduced
Scoping for Large Assembly Facilities
The ADAAG section 221
will reduce the number of wheelchair spaces and companion seats required in
assembly areas that seat more than 500 patrons.
The current ADA Standards provide that assembly areas with more than 500
seats must provide six wheelchair spaces plus one additional wheelchair space
for each additional 100 seats. ADAAG
provides that assembly areas that have 501 to 5000 seats must provide six
wheelchair spaces plus one additional wheelchair space for each additional 150
seats (or fraction thereof) between 501 and 5000. Assembly areas that have more than 5000 seats
must provide 36 wheelchair spaces plus one additional wheelchair space for each
200 seats (or fraction thereof) over 5000.
Both the current ADA Standards and ADAAG require assembly areas to
provide a companion seat adjacent to each wheelchair space.
The Department has
been asked whether the regulations requiring the maintenance of accessible
features in covered facilities would require existing assembly areas that
comply with the scoping of the current ADA Standards to maintain that level of
scoping, or if those assembly areas would be permitted to reduce the number of
wheelchair locations and companion seats to the level established in
ADAAG. The Department’s regulations
contain two provisions that would apply to this situation. The regulations implementing Title II and
Title III both provide that covered entities are to maintain in operable
condition “those features of facilities and equipment that are required to be
readily accessible to and usable by persons with disabilities” (28 CFR
35.133 and 36.211). In addition, the
current ADA Standards prohibit alterations that decrease accessibility below
the requirements for new construction in effect at the time of the alteration,
28 CFR pt. 36, App. A, 4.1.6 (1) (a).
Because these provisions clearly establish that covered entities must maintain
only the required level of accessibility, the Department expects that the
operators of existing assembly areas who want to adjust the number of
wheelchair spaces in their facility to comply with the revised ADA Standards
will be permitted to do so.
Alteration
of Cells in Correctional Facilities
ADAAG establishes
requirements for the design and construction of cells in detention and
correctional facilities. The Access
Board accepted comments on this issue during two separate rulemaking
proceedings: the rulemaking that
developed the guidelines for State and local government facilities completed in
1998, and the rulemaking that developed the guidelines that the Department is
now proposing to adopt. The Department
anticipates that it will propose revised ADA Standards that are consistent with
the ADAAG requirements. However, when it
adopted these new requirements, the Access Board specifically deferred one
decision to the Attorney General. ADAAG
sections 232.2 and 232.3 provide that “Alterations to cells shall not be
required to comply, except to the extent determined by the Attorney
General.” This provision first appeared
in the Access Board’s 1999 proposed rule.
At that time, the Access Board explained that –
In publishing final amendments for State
and local government facilities, the Board acknowledged that prison operators
commenting on the proposed amendments urged that access not be required in
altered correctional facilities because some existing facilities would not be
able to support inmates with disabilities even if cells were made
accessible. These comments also pointed
to difficulties in complying due to design constraints unique to correctional
facilities. In response, the Board had
reserved a proposed scoping requirement for altered cells, but noted that public
entities, including correctional entities, have an obligation to provide
program access, as required by the Department of Justice (DOJ) title II
regulations. Further, the Board noted
that the program access requirement may effectively determine the degree of
access necessary in an alteration. 64 FR
62259 (Nov. 16, 1999).
The Department
anticipates that when it proposes to adopt ADA Standards consistent with ADAAG
requirements applicable to facilities subject to Title II, the Department will
establish requirements for alterations to cells. Therefore, the Department is now seeking
public comment about the most effective means to ensure that existing
correctional facilities are made accessible to prisoners with disabilities. The Department offers the three following
alternatives for consideration:
Option 1: Require all altered elements to be accessible.
The first option is to maintain the current policy applicable to other
ADA alterations requirements. Under the
current regulations, when a facility is altered, each altered element and space
must comply with the applicable provisions of the ADA Standards. Applying this rule would require correctional
facilities to provide accessible elements as existing cells are altered until
the required number of accessible cells has been provided.
Option 2: Permit substitute cells to be made accessible
within the same facility. The second option is to modify the
alterations requirement by permitting the correctional authorities to meet
their obligation by providing the required accessible features in cells within
the same facility other than those specific cells in which alterations are
planned. This would provide flexibility
in deference to the unique circumstances presented in correctional and detention
facilities by permitting local officials to choose between providing
accessibility in the altered area or providing an appropriate accessible cell
elsewhere in the altered facility. This
alternative responds to the concern that the ADA’s alterations provision as
applied to correctional facilities may result in piecemeal accessibility that
does not always provide the level of accessibility needed by individuals with
disabilities. This option permits
correctional and detention facility operators to select the most appropriate
location for the accessible cells, while retaining the requirement for
providing accessibility at the time of an alteration.
Option 3: Permit substitute cells to be made accessible
within a prison system. This option also responds to the expressed
concern that the alterations requirement as applied to prisons results in
piecemeal accessibility. The
Department’s Title II regulation requires public entities to operate each service,
program, or activity so that the service, program, or activity, when viewed in
its entirety, is readily accessible to and usable by individuals with
disabilities (28 CFR 35.150). The idea
behind this alternative is to focus on ensuring that prisoners who have
disabilities are housed in the facilities that best meet their needs. Under this option, correctional officials
would not be required to include accessible cells in each facility that is
being altered. Instead, they would be
required to provide an equivalent accessible cell in an existing facility that
is sufficiently accessible to ensure that prisoners can have access to the
programs offered in the facility where they are housed. This option would address concerns that have
been expressed that piecemeal alterations of cells may result in accessible
cells being located in older facilities in which the existing construction
provides limited opportunities to provide access to other areas of the
facility.
If this option is
adopted, the Department anticipates that the regulation would specify that
public entities that elect to provide accessibility through this alternative
for detention and correctional facilities would be required to ensure that
prisoners with disabilities are housed in facilities appropriate to the level
of confinement that would apply to any other individual sentenced for a similar
offense. Such facilities would also be
required to make available a range of programs and benefits similar to that
made available to the general prison population.
Question 5.
Should the Department retain the current ADA requirement to make each
altered facility accessible to the extent required by the ADA Standards or
should it adopt an alternative approach to ensure accessibility in correctional
institutions? If you favor an
alternative approach, please indicate which approach you favor and provide as
much detail as possible in support of your view.
Recreation
Facilities: Golf Courses
ADAAG now establishes
comprehensive requirements for the design and construction of accessible golf
courses. In addition to establishing
scoping and technical requirements for individual elements in or serving the
golf course, section 206.2.15 provides that –
At least one accessible route shall connect
accessible elements and spaces within the boundary of the golf course. In addition, accessible routes serving golf
car rental areas; bag drop areas; course weather shelters complying with
238.2.3; course toilet rooms; and practice putting greens, practice teeing
grounds, and teeing stations at driving ranges complying with 238.3 shall
comply with Chapter 4 except as modified by 1006.2.
EXCEPTION: Golf car
passages complying with 1006.3 shall be permitted to be used for all or part of
accessible routes required by 206.2.15.
The Department
anticipates that it will propose to adopt the ADAAG requirements for golf
courses. However, the Department is
aware that these requirements may raise operational issues that are within the
purview of the Department’s enforcement responsibilities.
The Department has been
asked whether, and under what circumstances, a golf course must make specially
designed or adapted golf cars available to persons with mobility impairments
who are not able to walk from a golf car passage to the fairways or to the green.
The Department is
considering addressing this issue in its ADA regulations by requiring each golf course that provides golf
cars to make at least one, and possibly two, specialized golf cars available
for the use of persons with disabilities, with no greater advance notice to be
required from the disabled golfer than from other golfers. The Department believes that relevant
considerations in determining whether and under what circumstances this
requirement should be imposed include (i) whether the golf course makes golf
cars available to golfers who are not disabled, (ii) the burden that such a
requirement would impose on golf course facilities, and (iii) whether the
course requires the use of golf cars during play.
The Department understands
that the principal type of special golf car currently available is a one-seater
with hand controls and a swivel seat (the swivel seat enables the golfer to
play from the car). Golf course
operators have expressed concern in the past that the available one-person cars
(i) tip over easily on steep terrain and (ii) are too heavy for green use. Producers of newer designs for one-person
cars claim to have overcome these problems.
Question 6. To
what extent should golf courses be required to make accessible golf cars
available to people with disabilities?
Please provide as much detail as possible in support of your view. The Department also requests specific
information concerning the extent to which the one-person machines on the
market are, in fact, stable, lightweight, and moderately priced. The Department also requests information
about whether golf cars are being manufactured that are readily adaptable for
the addition of hand controls and swivel seats and whether such cars are
otherwise suitable for driving on fairways and greens.
Coverage
of Homeless Shelters, Halfway Houses, Transient Group Homes,
and Other Social Service Establishments
For the first time,
ADAAG includes specific scoping and technical provisions that apply to new
construction and alteration of residential facilities. Residential facilities are facilities that
contain dwelling units used primarily as long-term residences. Residential facilities can be distinguished
from transient lodging facilities, which are facilities that provide short-term
accommodations used primarily for sleeping (such as hotels). Previously existing ADAAG requirements for
transient lodging facilities have been revised.
As part of this revision, the Access Board deleted section 9.5 of the
1991 ADAAG, which established scoping and technical requirements for homeless
shelters, group homes, and similar social service establishments. This deletion creates a gap in coverage that
the Department’s regulation must address.
The Department
anticipates that when the ADA Standards are revised, the Department will
provide that the facilities now covered by section 9.5 will be subject to the
ADAAG requirements for residential facilities rather than the requirements for
transient lodging. The Department
considers this approach to be the most appropriate because the listed
facilities are subject to the ADA because of the nature of the services that
they provide, not the duration of those services. Program participants may be housed on either
a short-term or a long-term basis in facilities such as shelters, halfway
houses, and group homes.
The Department
anticipates that this classification will also make it easier for the covered
entities to satisfy their obligations under both the ADA and Section 504. The Department believes that many of these
listed entities are recipients of Federal financial assistance from the
Department of Housing and Urban Development (HUD). Therefore, they are subject to the
requirements of both HUD’s Section 504 regulation and the ADA Standards. ADAAG’s specifications for the design of
residential dwelling units have been coordinated with HUD’s Section 504
requirements to eliminate inconsistencies and potential conflicts. The specifications for transient lodging
units have not been similarly coordinated.
Therefore, if the
Department continues to treat these listed facilities as transient lodging, the
facilities may be subject to the provisions of two separate, and possibly
conflicting, regulatory requirements for design and construction. If the Department modifies its current ADA
Standards to permit these facilities to be designed in compliance with the
requirements applicable to residential dwelling units, the potential conflict
will be eliminated.
The Department is
seeking public comment on this proposal.
Equipment
Issues
In ADAAG, the Access
Board has established guidelines applicable to a range of fixed equipment –
equipment that is built into or permanently attached to a new or altered
facility – that is subject to the ADA.
The Department intends to adopt regulations based on these ADAAG
specifications to govern the installation of newly manufactured equipment in
new construction or alterations. Because
the Access Board’s jurisdiction extends only to the design, construction, and
alteration of buildings and facilities, ADAAG does not address operational
issues such as the acquisition of previously owned equipment, and it does not
address coverage of movable or portable equipment or other personal property
such as furniture. These issues are,
however, within the jurisdiction of the Department. Therefore, the Department is seeking comments
on the issues discussed below.
Previously Owned
Fixed Equipment. The Department is aware that some building
elements to which the ADA Standards apply, such as ATMs or amusement rides,
utilize manufactured equipment that becomes built into the structure of a
facility (so-called fixed equipment), which differs from equipment that
continues to be portable or movable (so-called free-standing equipment). This fixed equipment may be new for the
covered entity, but it is not necessarily newly manufactured. Some businesses traditionally elect to
conserve costs by installing previously owned equipment and have expressed
their concern that the Department will consider such fixed equipment as new for
purposes of compliance with the revised ADA Standards merely because its first
use occurs after the effective date of the revised ADA Standards. The Department generally views the
installation of previously used equipment in a new location as an alteration,
rather than new construction. Therefore,
only the elements of the facility that are actually altered, such as the route
to the equipment, the mounting height, or the entrance that provides access to
the equipment must comply with the revised Standards. Previously owned equipment installed as fixed
equipment will not be treated as new for purposes of compliance with the
revised ADA Standards.
Application of ADA
Standards and ADA to Free-Standing Equipment. The Department is also aware
that the public has expressed some uncertainty with respect to whether the ADA
Standards apply to free-standing equipment, such as soft-drink dispensers,
video arcade machines, free-standing ATMs, and furniture. Because ADAAG is intended to implement the
ADA requirements applicable to the design, new construction, and alteration of
buildings and facilities, the revised ADA Standards will apply directly only to
fixed equipment – as described above, equipment that becomes built into the
structure of a facility – and not to free-standing equipment.
The ADA itself,
however, extends beyond the boundaries of new construction and
alterations. The Department is required
to develop regulations that implement the general nondiscrimination
requirements of Title II and Title III, as well as the specific prohibitions on
discrimination in Title III. Under this
authority, the Department may establish requirements affecting equipment that
is not fixed to ensure that people with disabilities have an equal opportunity
to participate in the programs, services, and activities offered by covered
entities. In establishing these
requirements, the Department may look to the ADA Standards for guidance in
determining whether various types of equipment or furnishings are accessible to
people with disabilities.
The Department’s
current regulations implementing Title II and Title III of the ADA address
equipment in several different contexts.
The definition of “facility” in each regulation expressly includes
“equipment” (28 CFR 35.104 and 36.104).
Fixed equipment required to be accessible in new construction and
alterations is identified in the ADA Standards (28 CFR part 36, App. A). Examples of accessible equipment that may be
required are included in the definitions of auxiliary aids in 28 CFR 35.104 and
36.104. In addition, Appendix B to the
Title III regulation, 28 CFR part 36, App. B, Proposed Section 36.309, second
paragraph, further explains that –
Purchase or
modification of equipment is required in certain instances by the provisions in
36.201 and 36.202 [general prohibitions on discrimination]. For example, an arcade may need to provide
accessible video machines in order to ensure full and equal enjoyment of the
facilities and to provide an opportunity to participate in the services and
facilities it provides. The barrier
removal requirements of 36.304 will apply as well to furniture and equipment .
. . .
Because covered
entities continue to raise questions about the extent of their obligation to
provide accessible free-standing equipment, the Department is considering
whether there is a need for the Department’s ADA regulations to contain
specific language about the acquisition and use of mobile, portable, and other
free-standing equipment or furnishings used by covered entities to provide
services. If the Department does address
specific requirements for free-standing equipment, it may look to the ADA
Standards for guidance in determining whether various types of free-standing
equipment are accessible to people with disabilities.
Question 7. The
Department invites public comment on its approach to these issues. Because the Department anticipates that it
may issue further guidance with respect to the acquisition and use of mobile,
portable, and other free-standing equipment and furnishings used by covered
entities to provide services, the Department is seeking comment on the question
whether such guidance is necessary. If
you think that such guidance is needed, please provide specific examples of
situations that should be addressed.
Stadium-Style
Seating
Background.
Beginning in the mid-1990s, the first stadium-style movie theaters were
built in the United States. These
theaters employed a new type of theater design whereby, rather than placing
rows of seats on a gradually sloping floor as in traditional-style movie
theaters, all but a few rows of seats near the front of each theater were
located on a series of elevated tiers or risers (typically 12-18 inches in
height). The enhanced lines of sight
provided by these stadium-style movie theaters proved to be highly popular with
the movie going public and, consequently, fueled a boom in stadium-style
theater construction nationwide.
While stadium-style
theater designs have evolved somewhat over the years and typically vary from
theater circuit to theater circuit, two essential features have remained
constant: (i) movie patrons seated in the stadium sections of stadium-style
theaters enjoy enhanced lines of sight to the screen as compared to patrons
seated in the traditional sections of these theaters; and (ii) movie patrons
who use wheelchairs are excluded from the stadium sections of the great
majority of existing stadium-style theaters nationwide.
Section 4.33.3 of the current ADA Standards requires, among other things, that “[w]heelchair areas . . . shall be provided . . . lines of sight comparable to those for members of the general public.” This line-of-sight requirement has generated considerable debate as applied to stadium-style movie theaters. Persons with disabilities and disability rights organizations have complained to the Department that they are afforded inferior lines of sight when limited to the traditional section of stadium-style theaters. Specifically, they have complained that, due to design considerations particular to stadium-style theaters (such as, for example, typically larger and wider screens), sitting in rows close to the screen in the traditional section often results in a painful and uncomfortable viewing experience, as well as distortion of images on the screen. Movie theater owners and operators, on the other hand, have countered that they satisfy section 4.33.3’s line-of-sight requirement by providing patrons who use wh