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.

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