Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
Federal RegisterSep 15, 2010
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DEPARTMENT OF JUSTICE
28 CFR Part 36
[CRT Docket No. 106; AG Order No. 3181-2010]
RIN 1190-AA44
Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities
AGENCY:
Department of Justice, Civil Rights Division.
ACTION:
Final rule.
SUMMARY:
This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act
(ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. The Department is issuing this final rule in order to adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board, and to update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991. Concurrently with the publication of the final rule for title III, the Department is publishing a final rule amending its ADA title II regulation, which covers nondiscrimination on the basis of disability in State and local government services.
DATES:
Effective Date:
March 15, 2011.
FOR FURTHER INFORMATION CONTACT:
Janet L. Blizard, Deputy Chief, or Christina Galindo-Walsh, Attorney Advisor, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
This rule is also available in an accessible format on the ADA Home Page at
http://www.ada.gov.
You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above.
SUPPLEMENTARY INFORMATION:
The Roles of the Access Board and the Department of Justice
The Access Board was established by section 502 of the Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 13 public members appointed by the President, the majority of whom must be individuals with disabilities, and the heads of 12 Federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation (DOT). Originally, the Access Board was established to develop and maintain accessibility guidelines for facilities designed, constructed, altered, or leased with Federal dollars under the Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151
et seq.
The passage of the ADA expanded the Access Board's responsibilities.
The ADA requires the Access Board to “issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter * * * to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.” 42 U.S.C. 12204. The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the “minimum guidelines” issued by the Access Board, 42 U.S.C. 12134(c), 12186(c), but vests in the Attorney General sole responsibility for the promulgation of those standards that fall within the Department's jurisdiction and enforcement of the regulations.
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 barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department.
Enactment of the ADA and Issuance of the 1991 Regulations
On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability.
1
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. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101
et seq.
Section 306(a) of the ADA directs the Secretary of Transportation to issue regulations for demand responsive or fixed route systems operated by private entities not primarily engaged in the business of transporting people (sections 302(b)(2)(B) and (C)) and for private entities that are primarily engaged in the business of transporting people (section 304).
See
42 U.S.C. 12182(b), 12184, 12186(a). Section 306(b) directs the Attorney General to promulgate regulations to carry out the provisions of the rest of title III. 42 U.S.C. 12186(b).
1
On September 25, 2008, President George W. Bush signed into law the Americans with Disabilities Amendments Act of 2008 (ADA Amendments Act), Public Law 110-325. The ADA Amendments Act amended the ADA definition of disability to clarify its coverage of persons with disabilities and to provide guidance on the application of the definition. This final rule does not contain regulatory language implementing the ADA Amendments Act. The Department intends to publish a supplemental rule to amend the regulatory definition of “disability” to implement the changes mandated by that law.
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 on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131-65.
Title III, which this rule addresses, 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 12 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 such as factories, warehouses, or office buildings)—to comply with the ADA Standards. 42 U.S.C. 12181-89.
On July 26, 1991, the Department issued 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 1991 title III regulation, which is republished as Appendix D to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards), which were based upon the version of the Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date. Under the Department's 1991 title III regulation, places of public accommodation and commercial facilities currently are required to comply with the 1991 Standards with respect to newly constructed or altered facilities.
The Access Board's publication of the 2004 ADA/ABA Guidelines was the culmination of a long-term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between
Federal accessibility requirements and State and local building codes. In support of this effort, the Department is amending its regulation implementing title III and adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines. The Department is also amending its title II regulation, which prohibits discrimination on the basis of disability in State and local government services, concurrently with the publication of this rule in this issue of the
Federal Register
.
Development of the 2004 ADA/ABA Guidelines
In 1994, the Access Board began the process of updating the 1991 ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, and State and local government entities, as well as individuals with disabilities. In 1998, the Access Board added specific guidelines on State and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). In 1999, based largely on the report and recommendations of the advisory committee, the Access Board issued a notice of proposed rulemaking (NPRM) to update and revise its ADA and ABA Accessibility Guidelines.
See
64 FR 62248 (Nov. 16, 1999). In 2000, the Access Board added specific guidelines on play areas.
See
65 FR 62498 (Oct. 18, 2000). The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. In September of 2002, the Access Board set forth specific guidelines on recreation facilities. 67 FR 56352 (Sept. 3, 2002).
By the date of its final publication on July 23, 2004, the 2004 ADA/ABA Guidelines had been the subject of extraordinary review and public participation. 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.
The Department was involved extensively in the development of the 2004 ADA/ABA Guidelines. As a Federal member of the Access Board, the Attorney General's representative voted to approve the revised guidelines. ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provide scoping requirements for facilities subject to the ADA; “scoping” is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces—and, in some cases, how many—must comply with the technical specifications. ABA Chapter 1 and ABA Chapter 2 provide scoping requirements for facilities subject to the ABA (
i.e.,
facilities designed, built, altered, or leased with Federal funds). Chapters 3 through 10 of the 2004 ADA/ABA Guidelines provide uniform technical specifications for facilities subject to either the ADA or the ABA. This revised format is designed to eliminate unintended conflicts between the two sets of 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. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.
These amendments to the 1991 ADAAG have not been adopted previously by the Department as ADA Standards. Through this rule, the Department is adopting revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998. For the purposes of this part, the Department's revised standards are entitled “The 2010 Standards for Accessible Design” and consist of the 2004 ADAAG and the requirements contained in subpart D of 28 CFR part 36. Because the Department has adopted the 2004 ADAAG as part of its title II and title III regulations, once the Department's final rules become effective, the 2004 ADAAG will have legal effect with respect to the Department's title II and title III regulations and will cease to be mere guidance for those areas regulated by the Department. In 2006, DOT adopted the 2004 ADAAG. With respect to those areas regulated by DOT, these guidelines, as adopted by DOT, have had legal effect since 2006.
Under this regulation, the Department of Justice covers passenger vessels operated by private entities not primarily engaged in the business of transporting people with respect to the provision of goods and services of a public accommodation on the vessel. For example, a vessel operator whose vessel departs from Point A, takes passengers on a recreational trip, and returns passengers to Point A without ever providing for disembarkation at a Point B (
e.g.,
a dinner or harbor cruise, a fishing charter) is a public accommodation operated by a private entity not primarily engaged in the business of transporting people. This regulation covers those aspects of the vessel's operation relating to the use and enjoyment of the public accommodation, including, for example, the boarding process, safety policies, accessible routes on the vessel, and the provision of effective communication. Persons with complaints or concerns about discrimination on the basis of disability by vessel operators who are private entities not primarily engaged in the business of transporting people, or questions about how this regulation applies to such operators and vessels, should contact the Department of Justice.
Vessels operated by private entities primarily engaged in the business of transporting people and that provide the goods and services of a public accommodation are covered by this regulation and the Department of Transportation's passenger vessel rule, 49 CFR part 39. A vessel operator whose vessel takes passengers from Point A to Point B (
e.g.,
a cruise ship that sails from Miami to one or more Caribbean islands, a private ferry boat between two points on either side of a river or bay, a water taxi between two points in an urban area) is most likely a private entity primarily engaged in the business of transporting people. Persons with questions about how this regulation applies to such operators and vessels may contact the Department of Justice or the Department of Transportation for guidance or further information. However, the Department of Justice has enforcement authority for all private entities under title III of the ADA, so individuals with complaints about noncompliance with part 39 should provide those complaints to the Department of Justice.
The provisions of this rule and 49 CFR part 39 are intended to be substantively consistent with one another. Consequently, in interpreting the application of this rule to vessel operators who are private entities not primarily engaged in the business of transporting people, the Department of Justice views the obligations of those vessel operators as being similar to those of private entities primarily engaged in the business of transporting people under the provisions of 49 CFR part 39.
The Department's Rulemaking History
The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR
58768, for two reasons: (1) To begin the process of adopting the 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in Office of Management and Budget (OMB) Circular A-4 sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept. 17, 2003), available at
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf
(last visited June 24, 2010). While underscoring that the Department, as a member of the Access Board, already had reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (as well as with respect to the program access requirement in title II) is within the sole discretion of the Department. The ANPRM dealt with the Department's responsibilities under both title II and title III.
The public response to the ANPRM was substantial. The Department extended the comment deadline by four months at the public's request. 70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department's application of the 2004 ADAAG once adopted by the Department and the Department's regulatory assessment of the costs and benefits of particular elements. Many other commenters addressed areas of desired regulation or of particular concern.
To enhance accessibility strides made since the enactment of the ADA, commenters asked the Department to focus on previously unregulated areas, such as ticketing in assembly areas; reservations for hotel rooms, rental cars, and boat slips; and captioning. They also asked for clarification on some issues in the 1991 regulations, such as the requirements regarding service animals. Other commenters dealt with specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Commenters also provided some information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreation facilities, and play areas. Still other commenters addressed the effective date of the proposed standards, the triggering event by which the effective date is calculated for new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards.
After careful consideration of the public comments in response to the ANPRM, on June 17, 2008, the Department published an NPRM covering title III. 73 FR 34508. The Department also published an NPRM on that day covering title II. 73 FR 34466. The NPRMs addressed the issues raised in the public's comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Department's adoption of the 2004 ADAAG, the Department's regulatory assessment of the costs and benefits of the rule, its updates and amendments of certain provisions of the existing title II and III regulations, and areas that were in need of additional clarification or specificity.
A public hearing was held on July 15, 2008, in Washington, DC. Forty-five individuals testified in person or by phone. The hearing was streamed live over the Internet. By the end of the 60-day comment period, the Department had received 4,435 comments addressing a broad range of issues, many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local government agencies, disability advocacy organizations, and private individuals.
The Department notes that this rulemaking was unusual in that much of the proposed regulatory text and many of the questions asked across titles II and III were the same. Consequently, many of the commenters did not provide separate sets of documents for the proposed title II and title III rules, and in many instances, the commenters did not specify which title was being commented upon. As a result, where comments could be read to apply to both titles II and III, the Department included them in the comments and responses for each final rule.
Most of the commenters responded to questions posed specifically by the Department, including what were the most appropriate definitions for terms such as “wheelchair,” “mobility device,” and “service animal”; how to quantify various benefits that are difficult to monetize; what requirements to adopt for ticketing and assembly areas; whether to adopt safe harbors for small businesses; and how best to regulate captioning. Some comments addressed specific requirements in the 2004 ADAAG or responded to questions regarding elements scoped for the first time in the 2004 ADAAG, including recreation facilities and play areas. Other comments responded to questions posed by the Department concerning certain specific requirements in the 2004 ADAAG.
Relationship to Other Laws
The Department of Justice regulation implementing title III, 28 CFR 36.103, provides the following:
(a)
Rule of interpretation.
Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C. 791) or the regulations issued by Federal agencies pursuant to that title.
(b)
Section 504.
This part does not affect the obligations of a recipient of Federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) and regulations issued by Federal agencies implementing section 504.
(c)
Other laws.
This part does not invalidate or limit the remedies, rights, and procedures of any other Federal, State, or local laws (including State common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.
These provisions remain unchanged by the final rule. The Department recognizes that public accommodations subject to title III of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504 of the Rehabilitation Act of 1973 and other Federal statutes that prohibit discrimination on the basis of disability in the programs and activities of recipients of Federal financial assistance; and other Federal statutes such as the Air Carrier Access Act (ACAA), 49 U.S.C. 41705
et seq.,
and the Fair Housing Act (FHAct), 42 U.S.C. 3601
et seq.
Compliance with the Department's title II and title III regulations does not ensure compliance with other Federal statutes.
Public accommodations that are subject to the ADA as well as other Federal disability discrimination laws
must be aware of the requirements of all applicable laws and must comply with these laws and their implementing regulations. Although in many cases similar provisions of different statutes are interpreted to impose similar requirements, there are circumstances in which similar provisions are applied differently because of the nature of the covered entity or activity, or because of distinctions between the statutes. For example, emotional support animals that do not qualify as service animals under the Department's title III regulations may nevertheless qualify as permitted reasonable accommodations for persons with disabilities under the FHAct and the ACAA.
See, e.g., Overlook Mutual Homes, Inc.
v.
Spencer,
666 F. Supp. 2d 850 (S.D. Ohio 2009). Public accommodations that operate housing facilities must ensure that they apply the reasonable accommodation requirements of the FHAct in determining whether to allow a particular animal needed by a person with a disability into housing and may not use the ADA definition as a justification for reducing their FHAct obligations. In addition, nothing in the ADA prevents a public accommodation subject to one statute from modifying its policies and providing greater access in order to assist individuals with disabilities in achieving access to entities subject to other Federal statutes. For example, a quick service restaurant at an airport is, as a public accommodation, subject to the title III requirements, not to the ACAA requirements. Conversely, an air carrier that flies in and out of the same airport is required to comply with the ACAA, but is not covered by title III of the ADA. If a particular animal is a service animal for purposes of the ACAA and is thus allowed on an airplane, but is not a service animal for purposes of the ADA, nothing in the ADA prohibits an airport restaurant from allowing a ticketed passenger with a disability who is traveling with a service animal that meets the ACAA's definition of a service animal to bring that animal into the facility even though under the ADA's definition of service animal the animal lawfully could be excluded.
Organization of This Rule
Throughout this rule, the original ADA Standards, which are republished as Appendix D to 28 CFR part 36, will be referred to as the “1991 Standards.” The original title III regulation, codified at 28 CFR part 36 (2009), will be referred to as the “1991 regulation” or the “1991 title III regulation.” ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, 36 CFR part 1191, app. B and D (2009), will be referred to as the “2004 ADAAG.” The Department's Notice of Proposed Rulemaking, 73 FR 34508 (June 17, 2008), will be referred to as the “NPRM.” As noted above, the 2004 ADAAG, taken together with the requirements contained in subpart D of 28 CFR part 36 (New Construction and Alterations) of the final rule, will be referred to as the “2010 Standards.” The amendments made to the 1991 title III regulation and the adoption of the 2004 ADAAG, taken together, will be referred to as the “final rule.”
In performing the required periodic review of its existing regulation, the Department has reviewed the title III regulation section by section, and, as a result, has made several clarifications and amendments in this rule. Appendix A of the final rule, “Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities,” codified as Appendix A to 28 CFR part 36, provides the Department's response to comments and its explanations of the changes to the regulation. The section entitled “Section-by-Section Analysis and Response to Comments” in Appendix A provides a detailed discussion of the changes to the title III regulation. The Section-by-Section Analysis follows the order of the 1991 title III regulation, except that regulatory sections that remain unchanged are not referenced. The discussion within each section explains the changes and the reasoning behind them, as well as the Department's response to related public comments. Subject areas that deal with more than one section of the regulation include references to the related sections, where appropriate. The Section-by-Section Analysis also discusses many of the questions asked by the Department for specific public response. The section of Appendix A entitled “Other Issues” discusses public comment on several issues of concern to the Department that were the subject of questions that are not specifically addressed in the Section-by-Section Analysis.
The Department's description of the 2010 Standards, as well as a discussion of the public comments on specific sections of the 2004 ADAAG, is found in Appendix B of this final rule, “Analysis and Commentary on the 2010 ADA Standards for Accessible Design,” codified as Appendix B to 28 CFR part 36.
The provisions of this rule generally take effect six months from its publication in the
Federal Register
. The Department has determined, however, that compliance with the requirements related to new construction and alterations and reservations at a place of lodging shall not be required until 18 months from the publication date of this rule. These exceptions are set forth in §§ 36.406(a) and 36.302(e)(3), respectively, and are discussed in greater detail in Appendix A.
See
discussions in Appendix A entitled “Section 36.406 Standards for New Construction and Alterations” and “Section 36.302(e) Hotel Reservations.”
This final rule only addresses issues that were identified in the NPRM as subjects the Department intended to regulate through this rulemaking proceeding. Because the Department indicated in the NPRM that it did not intend to regulate certain areas, including equipment and furniture, accessible golf cars, and movie captioning and video description, as part of this rulemaking proceeding, the Department believes it would be appropriate to solicit more public comment about these areas prior to making them the subject of a rulemaking. The Department intends to engage in additional rulemaking in the near future addressing accessibility in these areas and others, including next generation 9-1-1 and accessibility of Web sites operated by covered public entities and public accommodations.
ADDITIONAL INFORMATION:
Regulatory Process Matters (SBREFA, Regulatory Flexibility Act, and Executive Orders)
The Department must provide two types of assessments as part of its final rule: An analysis of the costs and benefits of adopting the changes contained in this rule, and a periodic review of its existing regulations to consider their impact on small entities, including small businesses, small nonprofit organizations, and small governmental jurisdictions.
See
E.O. 12866, 58 FR 51735, 3 CFR, 1994 Comp., p. 638, as amended; Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601
et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, available at
http://www.whitehouse.gov/OMB/circulars/a004/a-4.pdf
(last visited June 24, 2010); E.O. 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247.
In the NPRM, the Department kept open the possibility that, if warranted by public comments received on an issue raised by the 2004 ADAAG or by the results of the Department's Initial Regulatory Impact Analysis (Initial RIA), available at
http://www.ada.gov/NPRM2008/ria.htm,
showing that the
likely costs of making a particular feature or facility accessible were disproportionate to the benefits (including both monetized and non-monetized benefits) to persons with disabilities, the Attorney General, as a member of the Access Board, could return the issue to the Access Board for further consideration. After careful consideration, the Department has determined that it is unnecessary to return any issues to the Access Board for additional consideration.
Executive Order 12866
This rule has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. The Department has evaluated its existing regulations for title II and title III section by section, and many of the provisions in the final rule for both titles reflect its efforts to mitigate any negative effects on small entities. A Final Regulatory Impact Analysis (Final RIA or RIA) was prepared by the Department's contractor, HDR|HLB Decision Economics, Inc. (HDR). In accordance with Executive Order 12866, as amended, and OMB Circular A-4, the Department has reviewed and considered the Final RIA and has accepted the results of this analysis as its assessment of the benefits and costs of the final rules.
Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,”
see
E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. The ADA states, “[i]t is the purpose of this [Act] (1) to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; [and] (2) to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities[.]” 42 U.S.C. 12101(b). Many of the benefits of this rule stem from the provision of such standards, which will promote inclusion, reduce stigma and potential embarrassment, and combat isolation, segregation, and second-class citizenship of individuals with disabilities. Some of these benefits are, in the words of Executive Order 12866, “difficult to quantify, but nevertheless essential to consider.” E.O. 12866, section 1(a). The Department has considered such benefits here.
Final Regulatory Impact Analysis
The Final RIA embodies a comprehensive benefit-cost analysis of the final rules for both title II and title III and assesses the incremental benefits and costs of the 2010 Standards relative to a primary baseline scenario (1991 Standards). In addition, the Department conducted additional research and analyses for requirements having the highest negative net present values under the primary baseline scenario. This approach was taken because, while the 1991 Standards are the only uniform set of accessibility standards that apply to public accommodations, commercial facilities, and State and local government facilities nationwide, it is also understood that many State and local jurisdictions have already adopted IBC/ANSI model code provisions that mirror those in the 2004 ADAAG. The assessments based on this approach assume that covered entities currently implementing codes that mirror the 2004 ADAAG will not need to modify their code requirements once the rules are finalized. They also assume that, even without the final rules, the current level of compliance would be unchanged. The Final RIA contains specific information, including data in chart form, detailing which States have already adopted the accessibility standards for this subset of six requirements. The Department believes that the estimates resulting from this approach represent a reasonable upper and lower measure of the likely effects these requirements will have that the Department was able to quantify and monetize.
The Final RIA estimates the benefits and costs for all new (referred to as “supplemental”) requirements and revised requirements across all types of newly constructed and existing facilities. The Final RIA also incorporates a sophisticated risk analysis process that quantifies the inherent uncertainties in estimating costs and benefits and then assesses (through computer simulations) the relative impact of these factors when varied simultaneously. A copy of the Final RIA will be made available online for public review on the Department's ADA Home Page (
http://www.ada.gov
).
From an economic perspective (as specified in OMB Circular A-B4), the results of the Final RIA demonstrate that the Department's final rules increase social resources and thus represent a public good because monetized benefits exceed monetized costs—that is, the regulations have a positive net present value (NPV). Indeed, under every scenario assessed in the Final RIA, the final rules have a positive NPV. The Final RIA's first scenario examines the incremental impact of the final rules using the “main” set of assumptions (
i.e.,
assuming a primary baseline (1991 Standards), that the safe harbor applies, and that for title III entities barrier removal is readily achievable for 50 percent of elements subject to supplemental requirements).
Expected Impact of the Rules
2
[In billions]
Discount rate
Expected NPV
Total
expected
PV
(benefits)
Total
expected
PV
(costs)
3%
$40.4
$66.2
$25.8
7
9.3
22.0
12.8
2
The analysis assumes these regulations will be in force for 15 years. Incremental costs and benefits are calculated for all construction, alterations, and barrier removal that is expected to occur during these 15 years. The analysis also assumes that any new or revised ADA rules enacted 15 years from now will include a safe harbor provision. Thus, any facilities constructed in year 14 of the final rules are assumed to continue to generate benefits to users, and to incur any operating or replacement costs for the life of these buildings, which is assumed to be 40 years.
Under this set of assumptions, the final rules have an expected NPV of $9.3 billion (7 percent discount rate) and $40.4 billion (3 percent discount rate).
See
Final RIA, table ES-1 & figure ES-2.
Water Closet Clearances
The Department gave careful consideration to the costs and benefits of its adoption of the standards relating to water closet clearances in single-user toilet rooms. The primary effect of the Department's proposed final rules governing water closet clearances in single-user toilet rooms with in-swinging and out-swinging doors is to allow sufficient room for “side” or “parallel” methods of transferring from a wheelchair to a toilet. Under the current 1991 Standards, the requisite clearance space in single-user toilet rooms between and around the toilet and the lavatory does not permit these methods of transfer. Side or parallel transfers are used by large numbers of persons who use wheelchairs and are regularly taught in rehabilitation and occupational therapy. Currently, persons who use side or parallel transfer methods from their wheelchairs are faced with a stark choice at establishments with single-user toilet rooms—
i.e.,
patronize the establishment but run the risk of needing assistance when using the restroom, travel with someone who would be able to provide assistance in toileting, or forgo the visit entirely. The revised water closet clearance regulations would make single-user toilet rooms accessible to all persons
who use wheelchairs, not just those with the physical strength, balance, and dexterity and the training to use a front-transfer method. Single-user toilet rooms are located in a wide variety of public and private facilities, including restaurants, fast-food establishments, schools, retail stores, parks, sports stadiums, and hospitals. Final promulgation of these requirements might thus, for example, enable a person who uses a side or parallel transfer method to use the restroom (or use the restroom independently) at his or her local coffee shop for the first time.
Because of the complex nature of its cost-benefit analysis, the Department is providing “plain language” descriptions of the benefits calculations for the two revised requirements with the highest estimated total costs: Water closet clearance in single-user toilet rooms with out-swinging doors (RIA Req. #28) (section 604.3 of the 2010 Standards) and water closet clearance in single-user toilet rooms with in-swinging doors (RIA Req. #32) (sections 604.3 and 603.2.3 Exception 2 of the 2010 Standards). Since many of the concepts and calculations in the Final RIA are highly technical, it is hoped that, by providing “lay” descriptions of how benefits are monetized for an illustrative set of requirements, the Final RIA will be more transparent and afford readers a more complete understanding of the benefits model generally. Because of the widespread adoption of the water closet clearance standards in existing State and local building codes, the following calculations use the IBC/ANSI baseline.
General description of monetized benefits for water closet clearance in single-user toilet rooms—out-swinging doors (Req. #28).
In order to assess monetized benefits for the requirement covering water closet clearances in single-user toilet rooms with out-swinging doors, a determination needed to be made concerning the population of users with disabilities who would likely benefit from this revised standard. Based on input received from a panel of experts jointly convened by HDR and the Department to discuss benefits-related estimates and assumptions used in the RIA model, it was assumed that accessibility changes brought about by this requirement would benefit persons with any type of ambulatory (
i.e.,
mobility-related) disability, such as persons who use wheelchairs, walkers, or braces. Recent census figures estimate that about 11.9 percent of Americans ages 15 and older have an ambulatory disability, or about 35 million people. This expert panel also estimated that single-user toilet rooms with out-swinging doors would be used slightly less than once every other visit to a facility with such toilet rooms covered by the final rules (or, viewed another way, about once every two hours spent at a covered facility assumed to have one or more single-user toilet rooms with out-swinging doors) by an individual with an ambulatory disability. The expert panel further estimated that, for such individuals, the revised requirement would result in an average time savings of about five and a half minutes when using the restroom. This time savings is due to the revised water closet clearance standard, which permits, among other things, greater flexibility in terms of access to the toilet by parallel or side transfer, thereby perhaps reducing the wait for another person to assist with toileting and the need to twist or struggle to access the toilet independently. Based on average hourly wage rates compiled by the U.S. Department of Labor, the time savings for Req. #28 is valued at just under $10 per hour.
For public and private facilities covered by the final rules, it is estimated that there are currently about 11 million single-user toilet rooms with out-swinging doors. The majority of these types of single-user toilet rooms, nearly 7 million, are assumed to be located at “Indoor Service Establishments,” a broad facility group that encompasses various types of indoor retail stores such as bakeries, grocery stores, clothing stores, and hardware stores. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with out-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #28, it is further understood that about half of all existing facilities assumed to have single-user toilet rooms with out-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules.
With respect to new construction, it is assumed that each single-user toilet room with an out-swinging door will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (
i.e.,
a period of time between 1 and 39 years).
Summing up monetized benefits to users with disabilities across all types of public and private facilities covered by the final rules, and assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, it is expected that the revised requirement for water closet clearance in single-user toilet rooms with out-swinging doors will result in net benefits of approximately $900 million over the life of these regulations.
General description of monetized benefits for water closet clearance in single-user toilet rooms—in-swinging doors (Req. # 32).
For the water closet clearance in single-user toilet rooms with the in-swinging door requirement (Req. #32), the expert panel determined that the primary beneficiaries would be persons who use wheelchairs. As compared to single-user toilet rooms with out-swinging doors, those with in-swinging doors tend to be larger (in terms of square footage) in order to accommodate clearance for the in-swinging door and, thus, are already likely to have adequate clear floor space for persons with disabilities who use other types of mobility aids such as walkers and crutches.
The expert benefits panel estimated that single-user toilet rooms with in-swinging doors are used less frequently on average—about once every 20 visits to a facility with such a toilet room by a person who uses a wheelchair—than their counterpart toilet rooms with out-swinging doors. This panel also determined that, on average, each user would realize a time savings of about 9 minutes as a result of the enhanced clearances required by this revised standard.
The RIA estimates that there are about 4 million single-user toilet rooms with in-swinging doors in existing facilities. About half of the single-user toilet rooms with in-swinging doors are assumed to be located in single-level stores, and about a quarter of them are assumed to be located in restaurants. Based on construction industry data, it was estimated that approximately 3 percent of existing single-user toilet rooms with in-swinging doors would be altered each year, and that the number of newly constructed facilities with these types of toilet rooms would increase at the rate of about 1 percent each year. However, due to the widespread adoption at the State and local level of model code provisions that mirror Req. #32, it is further understood that slightly more than 70 percent of all
existing facilities assumed to have single-user toilet rooms with in-swinging doors already are covered by State or local building codes that require equivalent water closet clearances. Due to the general element-by-element safe harbor provision in the final rules, no unaltered single-user toilet rooms that comply with the current 1991 Standards will be required to retrofit to meet the revised clearance requirements in the final rules.
Similar to the assumptions for Req. #28, it is assumed that newly constructed single-user toilet rooms with in-swinging doors will last the life of the building, about 40 years. For alterations, the amount of time such a toilet room will be used depends upon the remaining life of the building (
i.e.,
a period of time between 1 and 39 years). Over this time period, the total estimated value of benefits to users of water closets with in-swinging doors from the time they will save and decreased discomfort they will experience is nearly $12 million.
Additional benefits of water closet clearance standards.
The standards requiring sufficient space in single-user toilet rooms for a wheelchair user to effect a side or parallel transfer are among the most costly (in monetary terms) of the new provisions in the Access Board's guidelines that the Department adopts in this rule—but also, the Department believes, one of the most beneficial in non-monetary terms. Although the monetized costs of these requirements substantially exceed the monetized benefits, the additional benefits that persons with disabilities will derive from greater safety, enhanced independence, and the avoidance of stigma and humiliation—benefits that the Department's economic model could not put in monetary terms—are, in the Department's experience and considered judgment, likely to be quite high. Wheelchair users, including veterans returning from our Nation's wars with disabilities, are taught to transfer onto toilets from the side. Side transfers are the safest, most efficient, and most independence-promoting way for wheelchair users to get onto the toilet. The opportunity to effect a side transfer will often obviate the need for a wheelchair user or individual with another type of mobility impairment to obtain the assistance of another person to engage in what is, for most people, among the most private of activities. Executive Order 12866 refers explicitly not only to monetizable costs and benefits but also to “distributive impacts” and “equity,”
see
E.O. 12866, section 1(a), and it is important to recognize that the ADA is intended to provide important benefits that are distributional and equitable in character. These water closet clearance provisions will have non-monetized benefits that promote equal access and equal opportunity for individuals with disabilities, and will further the ADA's purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. 12101(b)(1).
The Department's calculations indicated that, in fact, people with the relevant disabilities would have to place only a very small monetary value on these quite substantial benefits for the costs and benefits of these water closet clearance standards to break even. To make these calculations, the Department separated out toilet rooms with out-swinging doors from those with in-swinging doors, because the costs and benefits of the respective water closet clearance requirements are significantly different. The Department estimates that, assuming 46 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of the requirement as applied to toilet rooms with out-swinging doors will exceed the monetized benefits by $454 million, an annualized net cost of approximately $32.6 million. But a large number of people with disabilities will realize benefits of independence, safety, and avoided stigma and humiliation as a result of the requirement's application in this context. Based on the estimates of its expert panel and its own experience, the Department believes that both wheelchair users and people with a variety of other mobility disabilities will benefit. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an out-swinging door approximately 677 million times per year. Dividing the $32.6 million annual cost by the 677 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at just under 5 cents per visit. The Department believes, based on its experience and informed judgment, that 5 cents substantially understates the value people with the relevant disabilities would place on these benefits in this context.
There are substantially fewer single-user toilet rooms with in-swinging doors, and substantially fewer people with disabilities will benefit from making those rooms accessible. While both wheelchair users and individuals with other ambulatory disabilities will benefit from the additional space in a room with an out-swinging door, the Department believes, based on the estimates of its expert panel and its own experience, that wheelchair users likely will be the primary beneficiaries of the in-swinging door requirement. The Department estimates that people with the relevant disabilities will use a newly accessible single-user toilet room with an in-swinging door approximately 8.7 million times per year. Moreover, the alteration costs to make a single-user toilet room with an in-swinging door accessible are substantially higher (because of the space taken up by the door) than the equivalent costs of making a room with an out-swinging door accessible. Thus, the Department calculates that, assuming 72 percent of covered facilities nationwide are located in jurisdictions that have adopted the relevant equivalent IBC/ANSI model code provisions, the costs of applying the toilet room accessibility standard to rooms with in-swinging doors will exceed the monetized benefits of doing so by $266.3 million over the life of the regulations, or approximately $19.14 million per year. Dividing the $19.14 million annual cost by the 8.7 million annual uses, the Department concludes that for the costs and benefits to break even in this context, people with the relevant disabilities will have to value safety, independence, and the avoidance of stigma and humiliation at approximately $2.20 per visit. The Department believes, based on its experience and informed judgment, that this figure approximates, and probably understates, the value wheelchair users place on safety, independence, and the avoidance of stigma and humiliation in this context.
Alternate Scenarios
Another scenario in the Final RIA explores the incremental impact of varying the assumptions concerning the percentage of existing elements subject to supplemental requirements for which barrier removal would be readily achievable. Readily achievable barrier removal rates are modeled at 0 percent, 50 percent, and 100 percent levels. The results of this scenario show that the expected NPV is positive for each readily achievable barrier removal rate and that varying this assumed rate has little impact on expected NPV.
See
Final RIA, figure ES-3.
A third set of analyses in the Final RIA demonstrates the impact of using alternate baselines based on model codes instead of the primary baseline.
The IBC model codes, which have been widely adopted by State and local jurisdictions around the country, are significant because many of the requirements in the final rules mirror accessibility provisions in the IBC model codes (or standards incorporated therein by reference, such as ANSI A117.1). The actual economic impact of the Department's final rules is, therefore, tempered by the fact that many jurisdictions nationwide have already adopted and are enforcing portions of the final rules—indeed, this was one of the goals underlying the Access Board's efforts to harmonize the 2004 ADAAG Standards with the model codes. However, capturing the economic impact of this reality poses a difficult modeling challenge due to the variety of methods by which States and localities have adopted the IBC/ANSI model codes (
e.g.,
in whole, in part, and with or without amendments), as well as the lack of a national “facility census” establishing the location, type, and age of existing ADA-covered facilities.
As a result, in the first set of alternate IBC baseline analyses, the Final RIA assumes that all of the three IBC model codes—IBC 2000, IBC 2003, and IBC 2006—have been fully adopted by all jurisdictions and apply to all facilities nationwide. As with the primary baseline scenarios examined in the Final RIA, use of these three alternate IBC baselines results in positive expected NPVs in all cases.
See
Final RIA, figure ES-4. These results also indicate that IBC 2000 and IBC 2006 respectively have the highest and lowest expected NPVs. These results are due to changes in the make-up of the set of requirements that is included in each alternative baseline.
Additionally, a second, more limited alternate baseline analysis in the Final RIA uses a State-specific and requirement-specific alternate IBC/ANSI baseline in order to demonstrate the likely actual incremental impact of an illustrative subset of 20 requirements under current conditions nationwide. For this analysis, research was conducted on a subset of 20 requirements in the final rules that have negative net present values under the primary baseline and readily identifiable IBC/ANSI counterparts to determine the extent to which they each respectively have been adopted at the State or local level. With respect to facilities, the population of adopting jurisdictions was used as a proxy for facility location. In other words, it was assumed that the number of ADA-covered facilities respectively compliant with these 20 requirements was equal to the percentage of the United States population (based on statistics from the Census Bureau) currently residing in those States or local jurisdictions that have adopted the IBC/ANSI counterparts to these requirements. The results of this more limited analysis, using State-specific and requirement-specific alternate IBC/ANSI baselines for these 20 requirements, demonstrate that the widespread adoption of IBC model codes by States and localities significantly lessens the financial impact of these specific requirements. Indeed, the Final RIA estimates that, if the NPVs for these 20 requirements resulting from the requirement-specific alternate IBC/ANSI baseline are substituted for their respective results under the primary baseline, the overall NPV for the final rules increases from $9.2 billion to $12.0 billion.
See
Final RIA, section 6.2.2 & table 10.
Benefits Not Monetized in the Formal Analysis
Finally, the RIA recognizes that additional benefits are likely to result from the new standards. Many of these benefits are more difficult to quantify. Among the potential benefits that have been discussed by researchers and advocates are reduced administrative costs due to harmonized guidelines, increased business opportunities, increased social development, and improved health benefits. For example, the final rules will substantially increase accessibility at newly scoped facilities such as recreation facilities and judicial facilities, which previously have been very difficult for persons with disabilities to access. Areas where the Department believes entities may incur benefits that are not monetized in the formal analysis include, but may not be limited to, the following:
Use benefits accruing to persons with disabilities.
The final rules should improve the overall sense of well-being of persons with disabilities, who will know that public entities and places of public accommodation are generally accessible, and who will have improved individual experiences. Some of the most frequently cited qualitative benefits of increased access are the increase in one's personal sense of dignity that arises from increased access and the decrease in possibly humiliating incidents due to accessibility barriers. Struggling to join classmates on a stage, to use a bathroom with too little clearance, or to enter a swimming pool all negatively affect a person's sense of independence and can lead to humiliating accidents, derisive comments, or embarrassment. These humiliations, together with feelings of being stigmatized as different or inferior from being relegated to use other, less comfortable or pleasant elements of a facility (such as a bathroom instead of a kitchen sink for rinsing a coffee mug at work), all have a negative effect on persons with disabilities.
Use benefits accruing to persons without disabilities.
Improved accessibility can affect more than just the rule's target population; persons without disabilities may also benefit from many of the requirements. Even though the requirements were not designed to benefit persons without disabilities, any time savings or easier access to a facility experienced by persons without disabilities are also benefits that should properly be attributed to that change in accessibility. Curb cuts in sidewalks make life easier for those using wheeled suitcases or pushing a baby stroller. For people with a lot of luggage or a need to change clothes, the larger bathroom stalls can be highly valued. A ramp into a pool can allow a child (or adult) with a fear of water to ease into that pool. All are examples of “unintended” benefits of the rule. And ideally, all should be part of the calculus of the benefits to society of the rule.
Social benefits.
Evidence supports the notion that children with and without disabilities benefit in their social development from interaction with one another. Therefore, there will likely be social development benefits generated by an increase in accessible play areas. However, these benefits are nearly impossible to quantify for several reasons. First, there is no guarantee that accessibility will generate play opportunities between children with and without disabilities. Second, there may be substantial overlap between interactions at accessible play areas and interactions at other facilities, such as schools and religious facilities. Third, it is not certain what the unit of measurement for social development should be.
Non-use benefits.
There are additional, indirect benefits to society that arise from improved accessibility. For instance, resource savings may arise from reduced social service agency outlays when people are able to access centralized points of service delivery rather than receiving home-based care. Home-based and other social services may include home health care visits and welfare benefits. Third-party employment effects can arise when enhanced accessibility results in increasing rates of consumption by disabled and non-disabled populations, which in turn results in reduced unemployment.
Two additional forms of benefits are discussed less often, let alone quantified: Option value and existence value. Option value is the value that people with and without disabilities derive from the option of using accessible facilities at some point in the future. As with insurance, people derive benefit from the knowledge that the option to use the accessible facility exists, even if it ultimately goes unused. Simply because an individual is a non-user of accessible elements today does not mean that he or she will remain so tomorrow. In any given year, there is some probability that an individual will develop a disability (either temporary or permanent) that will necessitate use of these features. For example, the 2000 Census found that 41.9 percent of adults 65 years and older identified themselves as having a disability. Census Bureau figures, moreover, project that the number of people 65 years and older will more than double between 2000 and 2030—from 35 million to 71.5 million. Therefore, even individuals who have no direct use for accessibility features today get a direct benefit from the knowledge of their existence should such individuals need them in the future.
Existence value is the benefit that individuals get from the plain existence of a good, service or resource—in this case, accessibility. It can also be described as the value that people both with and without disabilities derive from the guarantees of equal treatment and non-discrimination that are accorded through the provision of accessible facilities. In other words, people value living in a country that affords protections to individuals with disabilities, whether or not they themselves are directly or indirectly affected. Unlike use benefits and option value, existence value does not require an individual ever to use the resource or plan on using the resource in the future. There are numerous reasons why individuals might value accessibility even if they do not require it now and do not anticipate needing it in the future.
Costs Not Monetized in the Formal Analysis
The Department also recognizes that in addition to benefits that cannot reasonably be quantified or monetized, there may be negative consequences and costs that fall into this category as well. The absence of a quantitative assessment of such costs in the formal regulatory analysis is not meant to minimize their importance to affected entities; rather, it reflects the inherent difficulty in estimating those costs. Areas where the Department believes entities may incur costs that are not monetized in the formal analysis include, but may not be limited to, the following:
Costs from deferring or forgoing alterations.
Entities covered by the final rules may choose to delay otherwise desired alterations to their facilities due to the increased incremental costs imposed by compliance with the new requirements. This may lead to facility deterioration and decrease in the value of such facilities. In extreme cases, the costs of complying with the new requirements may lead some entities to opt to not build certain facilities at all. For example, the Department estimates that the incremental costs of building a new wading pool associated with the final rules will increase by about $142,500 on average. Some facilities may opt to not build such pools to avoid incurring this increased cost.
Loss of productive space while modifying an existing facility.
During complex alterations, such as where moving walls or plumbing systems will be necessary to comply with the final rules, productive space may be unavailable until the alterations are complete. For example, a hotel altering its bathrooms to comply with the final rules will be unable to allow guests to occupy these rooms while construction activities are underway, and thus the hotel may forgo revenue from these rooms during this time. While the amount of time necessary to perform alterations varies significantly, the costs associated with unproductive space could be high in certain cases, especially if space is already limited or if an entity or facility is located in an area where real estate values are particularly high (
e.g.,
New York or San Francisco).
Expert fees.
Another type of cost to entities that is not monetized in the formal analysis is legal fees to determine what, if anything, a facility needs to do in order to comply with the new rules or to respond to lawsuits. Several commenters indicated that entities will incur increased legal costs because the requirements are changing for the first time since 1991. Since litigation risk could increase, entities could spend more on legal fees than in the past. Likewise, covered entities may face incremental costs when undertaking alterations because their engineers, architects, or other consultants may also need to consider what modifications are necessary to comply with the new requirements. The Department has not quantified the incremental costs of the services of these kinds of experts.
Reduction in facility value and losses to individuals without disabilities due to the new accessibility requirements.
It is possible that some changes made by entities to their facilities in order to comply with the new requirements may result in fewer individuals without disabilities using such facilities (because of decreased enjoyment) and may create a disadvantage for individuals without disabilities, even though the change might increase accessibility for individuals with disabilities. For example, the new requirements for wading pools might decrease the value of the pool to the entity that owns it due to fewer individuals using it (because the new requirements for a sloped entry might make the pool too shallow). Similarly, several commenters from the miniature golf industry expressed concern that it would be difficult to comply with the regulations for accessible holes without significantly degrading the experience for other users. Finally, with respect to costs to individuals who do not have disabilities, a very tall person, for example, may be inconvenienced by having to reach further for a lowered light switch.
Section 610 Review
The Department also is required to conduct a periodic regulatory review pursuant to section 610 of the RFA, as amended by the SBREFA.
The review requires agencies to consider five factors: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other Federal rules, and, to the extent feasible, with State and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule. 5 U.S.C. 610(b). Based on these factors, the agency is required to determine whether to continue the rule without change or to amend or rescind the rule, to minimize any significant economic impact of the rule on a substantial number of small entities.
See id.
610(a).
In developing the 2010 Standards, the Department reviewed the 1991 Standards section by section, and, as a result, has made several clarifications and amendments in both the title II and title III implementing regulations. The changes reflect the Department's analysis and review of complaints or comments from the public, as well as changes in technology. Many of the
amendments aim to clarify and simplify the obligations of covered entities. As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in Federal accessibility guidelines, as well as to harmonize the Federal guidelines with model codes. The Department also has worked to create harmony where appropriate between the requirements of titles II and III. Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.
The Department has consulted with the Small Business Administration's Office of Advocacy about this process. The Office of Advocacy has advised that although the process followed by the Department was ancillary to the proposed adoption of revised ADA Standards, the steps taken to solicit public input and to respond to public concerns are functionally equivalent to the process required to complete a section 610 review. Therefore, this rulemaking fulfills the Department's obligations under the RFA.
Final Regulatory Flexibility Analysis
This final rule also has been reviewed by the Small Business Administration's Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates that the final rule will not have a significant economic impact on a substantial number of small entities. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards include all of the elements of a FRFA required by the RFA.
See
5 U.S.C. 604(a)(1)-(5).
Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following:
1.
Succinct summaries of the need for, and objectives of, the final rule.
The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title III regulation so that they are consistent with the title II regulations and comport with the Department's legal and practical experiences in enforcing the ADA.
The ADA requires the Department to adopt enforceable accessibility standards under the ADA that are consistent with the Access Board's minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department's title II and title III regulations.
Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action.
See
preamble sections of the final rules for titles II and III entitled “Summary”; Department of Justice Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768B70, (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying the Department's proposal to revise its regulations implementing titles II and III of the ADA); and Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34508B14 (June 17, 2008) (outlining the regulatory history and rationale underlying the Department's proposal to revise its regulations implementing titles II and III of the ADA).
2.
Summaries of significant issues raised by public comments in response to the Department's initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments.
The majority of the comments received by the Department addressing its IRFA set forth in the title III NPRM were submitted by the Advocacy. Advocacy acknowledged that the Department took into account the comments and concerns of small businesses; however, Advocacy remained concerned about certain items in the Department's NPRM and requested clarification or additional guidance on certain items.
General Safe Harbor.
Advocacy expressed support for the Department's proposal to allow an element-by-element safe harbor for elements that now comply with the 1991 Standards and encouraged the Department to include specific technical assistance in the Small Business Compliance Guide that the Department is required to publish pursuant to section 212 of the SBREFA, 5 U.S.C. 610
et seq.
Advocacy requested that technical assistance outlining which standards are subject to the safe harbor be included in the Department's guidance. The Department has provided a list of the new requirements in the 2010 Standards that are not eligible for the safe harbor in § 36.304(d)(2)(iii)(A)-(L) of the final rule and plans to include additional information about the application of the safe harbor in the Department's Small Business Compliance Guide. Advocacy also requested that guidance regarding the two effective dates for regulations also be provided, and the Department plans to include such guidance in its Small Business Compliance Guide.
Small Business Safe Harbor.
Advocacy expressed disappointment that the Department did not include a small business safe harbor in the final rule. In the NPRM, the Department proposed to include a small business safe harbor. Advocacy conceptually supported this safe harbor but had concerns regarding its application. Commenters from both the disability community and the business community uniformly, and quite adamantly, opposed the Department's proposal. Some business commenters suggested alternative safe harbors, but there was no common thread among their suggestions that would enable the Department to craft a proposal that would draw support from the affected communities.
Advocacy recommended that the Department continue to study how the proposed small business safe harbor might be made workable in future rulemakings, and recommended that the Department also seek other alternatives that minimize the economic impact of the ADA rulemakings in the future. The Department is mindful of its obligations under the SBREFA and will be sensitive to the need to mitigate costs for small businesses in any future rulemaking; however, based on the information currently available, the Department has declined to commit to a specific regulatory approach in the final rule.
Indirect Costs.
Advocacy and other commenters representing business interests expressed concern that businesses would incur substantial indirect costs under the final rule for accessibility consultants, legal counsel, training, and the development of new policies and procedures. The Department believes that such “indirect costs,” even assuming they would occur as described by these commenters, are not properly attributed to the Department's final rule implementing the ADA.
The vast majority of the new requirements are incremental changes subject to a safe harbor. All businesses
currently in compliance with the 1991 Standards will neither need to undertake further retrofits nor require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are
not
currently in compliance with the 1991 Standards, then the cost of making such a determination and bringing these elements into compliance are not properly attributed to the final rule, but to lack of compliance with the 1991 Standards.
For the limited number of requirements in the final rule that are supplemental, the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (
e.g.,
a swimming pool) and then conduct any necessary barrier removal work either in-house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, Chapter 5 of the Final RIA has a high-end estimate of the additional management costs of such evaluation (from 1 to 8 hours of staff time).
The Department also anticipates that businesses will incur minimal costs for accessibility consultants to ensure compliance with the new requirements for New Construction and Alterations in the final rule. Both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into design plans by architects and builders. Further, in adopting the final rule, the Department has sought to harmonize, to the greatest extent possible, the ADA Standards with model codes that have been adopted on a widespread basis by State and local jurisdictions across the country. Accordingly, many of the requirements in the final rule are already incorporated into building codes nationwide. Additionally, it is assumed to be part of the regular course of business—and thereby incorporated into standard professional services or construction contracts—for architects and contractors to keep abreast of changes in applicable Federal, State, and local laws and building codes. Given these considerations, the Department has determined that the additional costs, if any, for architectural or contractor services that arise out of the final rule should be minimal.
Some commenters stated that the final rule would require them to develop new policies or manuals to retrain employees on the revised ADA standards. However, it is the Department's view that because the revised and supplemental requirements address architectural issues and features, the final rule would require minimal, if any, changes to the overall policies and procedures of covered entities.
Finally, commenters representing business interests expressed the view that the final rule would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law.
See
Final RIA, Ch. 3, section 3.1.4, “Other Management Transition Costs”; Ch. 5, “Updates to the Regulatory Impact Analysis”; and table 15, “Impact of NPV of Estimated Managerial Costs for Supplemental Requirements at All Facilities.”
3.
Estimates of the number and type of small entities to which the final rule will apply.
The Department estimates that the final rule will apply to approximately three million small entities or facilities covered by title III.
See
Final RIA, Ch. 7, “Small Business Impact Analysis,” table 17, and app. 5, “Small Business Data”;
see also
73 FR 36964, 36996-37009 (June 30, 2008) (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of the rule on small facilities/entities versus “typical” (
i.e.,
average-sized) facilities/entities).
4.
A description of the projected reporting, record-keeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.
The final rule imposes no new record-keeping or reporting requirements.
See
preamble section entitled “Paperwork Reduction Act.” Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, “Small Business Impact Analysis” and accompanying Appendix 5, “Small Business Data.”
5.
Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rule and for rejecting other significant alternatives.
From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small businesses. Several of these steps are summarized below.
As an initial matter, the Department—as a voting member of the Access Board—was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small businesses in several respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small businesses. Second, the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of private and public entities, including small business groups, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board's Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest.
See, e.g.,
“ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and Outdoor Developed Areas,” Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses, expressed significant concern that such requirements would be prohibitively expensive, would require additional space, and might fundamentally alter the nature of their courses.
See, e.g.,
“ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities,” Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space required for start of play areas.
See, e.g.,
Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings
and Facilities—Recreation Facilities Final Rule, 36 CFR parts 1190 and 1191.
The Department also published an ANPRM to solicit public input on the adoption of the 2004 ADAAG as the revised Federal accessibility standards implementing titles II and III of the ADA. Among other things, the ANPRM specifically invited comment from small entities regarding the proposed rule's potential economic impact and suggested regulatory alternatives to ameliorate any such impact.
See
“Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” Department of Justice Advance Notice of Proposed Rulemaking, 69 FR 58768, 58778-79 (Sept. 30, 2004). The Department received over 900 comments, and small business interests figured prominently.
See
“Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,” Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34511, 34550 (June 17, 2008).
Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by the small business community in ANPRM comments. First, to mitigate costs to existing facilities, the Department proposed an element-by-element safe harbor that would exempt elements in compliance with applicable technical and scoping requirements in the 1991 Standards from any retrofit obligations under the revised title III rule.
Id.
at 34514-15, 34532-33. While this proposed safe harbor applied to title III covered entities irrespective of size, it was small businesses that especially stood to benefit since, according to comments from small business advocates, small businesses are more likely to operate in older buildings and facilities. The title III NPRM also offered for public comment a novel safe harbor provision specifically designed to address small business advocates' request for clearer guidance on the readily achievable barrier removal requirement. This proposal provided that qualified small businesses would be deemed to have satisfied their readily achievable barrier removal obligations for a given year if, during that tax year, they had spent at least 1 percent of their respective gross revenues undertaking measures in compliance with title III barrier removal requirements.
Id.
at 34538-39. Lastly, the NPRM sought public input on the inclusion of reduced scoping provisions for certain types of small existing recreation facilities (
i.e.,
swimming pools, play areas, and saunas).
Id.
at 34515, 34534-37.
During the NPRM comment period, the Department engaged in considerable public outreach to the small business community. A public hearing was held in Washington, D.C., during which nearly 50 persons, including several small business owners, testified in person or by phone.
See Transcript of the Public Hearing on Notices of Proposed Rulemaking
(July 15, 2008), available at
www.ada.gov/NPRM2008/public_hearing_transcript.htm.
This hearing was also streamed live over the Internet. By the end of the 60-day comment period, the Department had also received nearly 4,500 public comments on the title III NPRM, including a significant number of comments reflecting small businesses' perspectives on a wide range of regulatory issues.
In addition to soliciting input from small entities through the formal process for public comment, the Department also targeted the small business community with less formal regulatory discussions, including a Small Business Roundtable convened by the Office of Advocacy and held at the offices of the Small Business Administration in Washington, D.C., and an informational question-and-answer session concerning the titles II and III NPRMs at the Department of Justice in which business representatives attended in-person and by telephone. These outreach efforts provided the small business community with information on the NPRM proposals being considered by the Department and gave small businesses the opportunity to ask questions of the Department and provide feedback.
As a result of the feedback provided by representatives of small business interests on the title III NPRM, the Department was able to assess the impact of various alternatives on small businesses before adopting its final rule and took steps to minimize any significant impact on small entities. Most notably, the final rule retains the element-by-element safe harbor for which the small business community voiced strong support.
See
Appendix A discussion of removal of barriers (§ 36.304). The Department believes that this element-by-element safe harbor provision will go a long way toward mitigating the economic impact of the final rule on existing facilities owned or operated by small businesses. Indeed, as demonstrated in the Final RIA, the element-by-element safe harbor will provide substantial relief to small businesses that is estimated at $ 7.5 billion over the expected life of the final rule.
Additional regulatory measures mitigating the economic impact of the final rule on title III-covered entities (including small businesses) include deletion of the proposed requirement for captioning of safety and emergency information on scoreboards at sporting venues, retention of the proposed path of travel safe harbor, extension of the compliance date of the 2010 Standards as applied to new construction and alterations from 6 months to 18 months after publication of the final rule, and, in response to public comments, modification of the triggering event for application of the 2010 Standards to new construction and alterations from a unitary approach (commencement of physical construction) to a two-pronged approach (date of last application for building permit or commencement of physical construction) depending on whether a building permit is or is not required for the type of construction at issue by State or local building authorities.
See
Appendix A discussions of captioning at sporting venues (§ 36.303), alterations and path of travel (§ 36.403), and compliance dates and triggering events for new construction and alterations (§ 36.406).
Two sets of proposed alternative measures that would have potentially provided some cost savings to small businesses—the safe harbor for qualified small businesses and reduced scoping for certain existing recreation facilities—were not adopted by the Department in the final rule. As discussed in more depth previously, the safe harbor for qualified small businesses was omitted from the final rule because the general safe harbor already provides significant relief for small businesses located in existing facilities, the proposed safe harbor provision lacked support from the small business community and no consensus emerged from business commenters concerning feasible bases for the final regulatory provision, and commenters noted practical considerations that would potentially make some small businesses incur greater expense or administrative burden.
See
Appendix A discussion of the safe harbor for qualified small businesses (§ 36.304).
The Department also omitted the proposals to reduce scoping for certain existing recreation facilities in the final rule. While these proposals were not specific to small entities, they nonetheless might have mitigated the impact of the final rule for some small businesses that owned or operated existing facilities at which these recreational elements were located.
See
Appendix A discussion of reduced scoping for play areas and other recreation facilities (§ 36.304). The Department gave careful consideration to how best to insulate small businesses from overly burdensome barrier removal costs under the 2010 Standards for existing small play areas, swimming pools, and saunas, while still providing accessible and integrated recreation facilities that are of great importance to persons with disabilities. The Department concluded that the existing readily achievable barrier removal standard, rather than specific exemptions for these types of existing facilities, is the most efficacious method by which to protect small businesses.
Once the final rule is promulgated, small businesses will also have a wealth of documents to assist them in complying with the 2010 Standards. For example, accompanying the final rule in the
Federal Register
is the Department's “Analysis and Commentary on the 2010 ADA Standards for Accessible Design,” which provides a plain language description of the revised scoping and technical requirements in these Standards and provides illustrative figures. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. Additionally, the Access Board has published a number of guides that discuss and illustrate application of the 2010 Standards to play areas and various types of recreation facilities.
Executive Order 13132: Federalism
Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, requires executive branch agencies to consider whether a rule will have federalism implications. That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on State and local governments, a substantial direct effect on the relationship between the Federal government and the States and localities, or a substantial direct effect on the distribution of power and responsibilities among the different levels of government. If an agency believes that a rule is likely to have federalism implications, it must consult with State and local elected officials about how to minimize or eliminate the effects.
Title III of the ADA covers public accommodations and commercial facilities. These facilities are generally subject to regulation by different levels of government, including Federal, State, and local governments. The ADA and the 2010 Standards set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of State and local laws, particularly building codes. The 2010 Standards address federalism concerns and mitigate federalism implications, particularly the provisions that streamline the administrative process for State and local governments seeking ADA code certification under title III.
As a member of the Access Board, the Department was privy to substantial feedback from State and local governments throughout the development of the Board's 2004 guidelines. Before those guidelines were finalized as the 2004 ADA/ABA Guidelines, they addressed and minimized federalism concerns expressed by State and local governments during the development process. Because the Department adopted ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, the steps taken in the 2004 ADA/ABA Guidelines to address federalism concerns are reflected in the 2010 Standards.
The Department also solicited and received input from public entities in the September 2004 ANPRM and the June 2008 NPRM. Through the ANPRM and NPRM processes, the Department solicited comments from elected State and local officials and their representative national organizations about the potential federalism implications. The Department received comments addressing whether the ANPRM and NPRM directly affected State and local governments, the relationship between the Federal government and the States, and the distribution of power and responsibilities among the various levels of government. The rule preempts State laws affecting entities subject to the ADA only to the extent that those laws conflict with the requirements of the ADA, as set forth in the rule.
National Technology Transfer and Advancement Act of 1995
The National Technology Transfer and Advancement Act of 1995 (NTTAA) directs that, as a general matter, all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, which are private, generally non-profit organizations that develop technical standards or specifications using well-defined procedures that require openness, balanced participation among affected interests and groups, fairness and due process, and an opportunity for appeal, as a means to carry out policy objectives or activities. Public Law 104-113 section 12(d)(1) (15 U.S.C. 272 Note). In addition, the NTTAA directs agencies to consult with voluntary, private sector, consensus standards bodies and requires that agencies participate with such bodies in the development of technical standards when such participation is in the public interest and is compatible with agency and departmental missions, authorities, priorities, and budget resources.
Id.
section 12(d)(1). The Department, as a member of the Access Board, was an active participant in the lengthy process of developing the 2004 ADAAG, on which the 2010 Standards are based. As part of this update, the Board has made its guidelines more consistent with model building codes, such as the IBC, and industry standards. It coordinated extensively with model code groups and standard-setting bodies throughout the process so that differences could be reconciled. As a result, an historic level of harmonization has been achieved that has brought about improvements to the guidelines, as well as to counterpart provisions in the IBC and key industry standards, including those for accessible facilities issued through the American National Standards Institute.
Plain Language Instructions
The Department makes every effort to promote clarity and transparency in its rulemaking. In any regulation, there is a tension between drafting language that is simple and straightforward and drafting language that gives full effect to issues of legal interpretation. The Department operates a toll-free ADA Information Line (800) 514-0301 (voice); (800) 514-0383 (TTY) that the public is welcome to call at any time to obtain assistance in understanding anything in this rule. If any commenter has suggestions for how the regulation could be written more clearly, please contact Janet L. Blizard, Deputy Chief, Disability Rights Section, whose contact information is provided in the introductory section of this rule, entitled
FOR FURTHER INFORMATION CONTACT.
Paperwork Reduction Act
The Paperwork Reduction Act of 1980 (PRA) requires agencies to clear forms and recordkeeping requirements with OMB before they can be introduced. 44 U.S.C. 3501
et seq.
This rule does not contain any paperwork or recordkeeping requirements and does not require clearance under the PRA.
Unfunded Mandates Reform Act
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1503(2), excludes from coverage under that Act any proposed or final Federal regulation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Accordingly, this rulemaking is not subject to the provisions of the Unfunded Mandates Reform Act.
List of Subjects for 28 CFR Part 36
Administrative practice and procedure, Buildings and facilities, Business and industry, Civil rights, Individuals with disabilities, Penalties, Reporting and recordkeeping requirements.
By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and 510, 5 U.S.C. 301, and section 306 of the Americans with Disabilities Act of 1990, Public Law 101-336 (42 U.S.C. 12186), and for the reasons set forth in Appendix A to 28 CFR part 36, chapter I of title 28 of the Code of Federal Regulations is amended as follows:
PART 36—NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES
Subpart A—General
1. The authority citation for 28 CFR part 36 is revised to read as follows:
Authority:
5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
2. Amend § 36.104 by adding the following definitions of
1991 Standards, 2004 ADAAG,
2010 Standards, direct threat,
existing facility, housing at a place of education,
other power-driven mobility device, qualified
reader, video remote interpreting (VRI) service,
and
wheelchair
in alphabetical order and revising the definitions of
place of public accommodation, qualified interpreter,
and
service animal
to read as follows:
§ 36.104
Definitions.
1991 Standards
means requirements set forth in the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to this part.
2004 ADAAG
means the requirements set forth in appendices B and D to 36 CFR part 1191 (2009).
2010 Standards
means the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in subpart D of this part.
Direct threat
means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services, as provided in § 36.208.
Existing facility
means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part.
Housing at a place of education
means housing operated by or on behalf of an elementary, secondary, undergraduate, or postgraduate school, or other place of education, including dormitories, suites, apartments, or other places of residence.
Other power-driven mobility device
means any mobility device powered by batteries, fuel, or other engines—whether or not designed primarily for use by individuals with mobility disabilities—that is used by individuals with mobility disabilities for the purpose of locomotion, including golf cars, electronic personal assistance mobility devices (EPAMDs), such as the Segway® PT, or any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair within the meaning of this section. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).
Place of public accommodation
means a facility operated by a private entity whose operations affect commerce and fall within at least one of the following categories—
(1) Place of lodging, except for an establishment located within a facility that contains not more than five rooms for rent or hire and that actually is occupied by the proprietor of the establishment as the residence of the proprietor. For purposes of this part, a facility is a “place of lodging” if it is—
(i) An inn, hotel, or motel; or
(ii) A facility that—
(A) Provides guest rooms for sleeping for stays that primarily are short-term in nature (generally 30 days or less) where the occupant does not have the right to return to a specific room or unit after the conclusion of his or her stay; and
(B) Provides guest rooms under conditions and with amenities similar to a hotel, motel, or inn, including the following—
(
1
) On- or off-site management and reservations service;
(
2
) Rooms available on a walk-up or call-in basis;
(
3
) Availability of housekeeping or linen service; and
(
4
) Acceptance of reservations for a guest room type without guaranteeing a particular unit or room until check-in, and without a prior lease or security deposit.
Qualified interpreter
means an interpreter who, via a video remote interpreting (VRI) service or an on-site appearance, is able to interpret effectively, accurately, and impartially, both receptively and expressively, using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral transliterators, and cued-language transliterators.
Qualified reader
means a person who is able to read effectively, accurately, and impartially using any necessary specialized vocabulary.
Service animal
means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Other species of animals, whether wild or domestic, trained or untrained, are not service animals for the purposes of this definition. The work or tasks performed by a service animal must be directly related to the handler's disability. Examples of work or tasks include, but are not limited to, assisting individuals who are blind or have low vision with navigation and other tasks, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing non-violent protection or rescue work, pulling a wheelchair, assisting an individual during a seizure, alerting individuals to the presence of allergens, retrieving items such as medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and helping persons with psychiatric and neurological disabilities by preventing or interrupting impulsive or destructive behaviors. The crime deterrent effects of an animal's presence and the provision of emotional support, well-being, comfort, or companionship do not constitute work or tasks for the purposes of this definition.
Video remote interpreting (VRI) service
means an interpreting service that uses video conference technology over dedicated lines or wireless technology offering high-speed, wide-bandwidth video connection that delivers high-quality video images as provided in § 36.303(f).
Wheelchair
means a manually-operated or power-driven device designed primarily for use by an individual with a mobility disability for the main purpose of indoor or of both indoor and outdoor locomotion. This definition does not apply to Federal wilderness areas; wheelchairs in such areas are defined in section 508(c)(2) of the ADA, 42 U.S.C. 12207(c)(2).
Subpart B—General Requirements
3. Amend § 36.208 by removing paragraph (b) and redesignating paragraph (c) as paragraph (b) and by revising redesignated paragraph (b) to read as follows:
§ 36.208
Direct threat.
(b) In determining whether an individual poses a direct threat to the health or safety of others, a public accommodation must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: The nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
4. Amend § 36.211 by adding paragraph (c) to read as follows:
§ 36.211
Maintenance of accessible features.
(c) If the 2010 Standards reduce the technical requirements or the number of required accessible elements below the number required by the 1991 Standards, the technical requirements or the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the 2010 Standards.
Subpart C—Specific Requirements
5. Amend § 36.302 as follows:
a. Revise paragraph (c)(2); and
b. Add paragraphs (c)(3) through (c)(9) and paragraphs (e) and (f) to read as follows:
§ 36.302
Modifications in policies, practices, or procedures.
(c) * * *
(2)
Exceptions.
A public accommodation may ask an individual with a disability to remove a service animal from the premises if:
(i) The animal is out of control and the animal's handler does not take effective action to control it; or
(ii) The animal is not housebroken.
(3)
If an animal is properly excluded.
If a public accommodation properly excludes a service animal under § 36.302(c)(2), it shall give the individual with a disability the opportunity to obtain goods, services, and accommodations without having the service animal on the premises.
(4)
Animal under handler's control.
A service animal shall be under the control of its handler. A service animal shall have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal's safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler's control (
e.g.,
voice control, signals, or other effective means).
(5)
Care or supervision.
A public accommodation is not responsible for the care or supervision of a service animal.
(6)
Inquiries.
A public accommodation shall not ask about the nature or extent of a person's disability, but may make two inquiries to determine whether an animal qualifies as a service animal. A public accommodation may ask if the animal is required because of a disability and what work or task the animal has been trained to perform. A public accommodation shall not require documentation, such as proof that the animal has been certified, trained, or licensed as a service animal. Generally, a public accommodation may not make these inquiries about a service animal when it is readily apparent that an animal is trained to do work or perform tasks for an individual with a disability (
e.g.,
the dog is observed guiding an individual who is blind or has low vision, pulling a person's wheelchair, or providing assistance with stability or balance to an individual with an observable mobility disability).
(7)
Access to areas of a public accommodation.
Individuals with disabilities shall be permitted to be accompanied by their service animals in all areas of a place of public accommodation where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
(8)
Surcharges.
A public accommodation shall not ask or require an individual with a disability to pay a surcharge, even if people accompanied by pets are required to pay fees, or to comply with other requirements generally not applicable to people without pets. If a public accommodation normally charges individuals for the damage they cause, an individual with a disability may be charged for damage caused by his or her service animal.
(9)
Miniature horses.
(i) A public accommodation shall make reasonable modifications in policies, practices, or procedures to permit the use of a miniature horse by an individual with a disability if the miniature horse has been individually trained to do work or perform tasks for the benefit of the individual with a disability.
(ii)
Assessment factors.
In determining whether reasonable modifications in policies, practices, or procedures can be made to allow a miniature horse into a specific facility, a public accommodation shall consider—
(A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features;
(B) Whether the handler has sufficient control of the miniature horse;
(C) Whether the miniature horse is housebroken; and
(D) Whether the miniature horse's presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
(iii)
Other requirements.
Sections 36.302(c)(3) through (c)(8), which apply to service animals, shall also apply to miniature horses.
(e)(1)
Reservations made by places of lodging.
A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by telephone, in-person, or through a third party—
(i) Modify its policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;
(ii) Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
(iii) Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.
(2)
Exception.
The requirements in paragraphs (iii), (iv), and (v) of this section do not apply to reservations for individual guest rooms or other units not owned or substantially controlled by the entity that owns, leases, or operates the overall facility.
(3)
Compliance date.
The requirements in this section will apply to reservations made on or after March 15, 2012.
(f)
Ticketing.
(1)(i) For the purposes of this section, “accessible seating” is defined as wheelchair spaces and companion seats that comply with sections 221 and 802 of the 2010 Standards along with any other seats required to be offered for sale to the individual with a disability pursuant to paragraph (4) of this section.
(ii)
Ticket sales.
A public accommodation that sells tickets for a single event or series of events shall modify its policies, practices, or procedures to ensure that individuals with disabilities have an equal opportunity to purchase tickets for accessible seating—
(A) During the same hours;
(B) During the same stages of ticket sales, including, but not limited to, pre-sales, promotions, lotteries, wait-lists, and general sales;
(C) Through the same methods of distribution;
(D) In the same types and numbers of ticketing sales outlets, including telephone service, in-person ticket sales at the facility, or third-party ticketing services, as other patrons; and
(E) Under the same terms and conditions as other tickets sold for the same event or series of events.
(2)
Identification of available accessible seating.
A public accommodation that sells or distributes tickets for a single event or series of events shall, upon inquiry—
(i) Inform individuals with disabilities, their companions, and third parties purchasing tickets for accessible seating on behalf of individuals with disabilities of the locations of all unsold or otherwise available accessible seating for any ticketed event or events at the facility;
(ii) Identify and describe the features of available accessible seating in enough detail to reasonably permit an individual with a disability to assess independently whether a given accessible seating location meets his or her accessibility needs; and
(iii) Provide materials, such as seating maps, plans, brochures, pricing charts, or other information, that identify accessible seating and information relevant thereto with the same text or visual representations as other seats, if such materials are provided to the general public.
(3)
Ticket prices.
The price of tickets for accessible seating for a single event or series of events shall not be set higher than the price for other tickets in the same seating section for the same event or series of events. Tickets for accessible seating must be made available at all price levels for every event or series of events. If tickets for accessible seating at a particular price level cannot be provided because barrier removal in an existing facility is not readily achievable, then the percentage of tickets for accessible seating that should have been available at that price level but for the barriers (determined by the ratio of the total number of tickets at that price level to the total number of tickets in the assembly area) shall be offered for purchase, at that price level, in a nearby or similar accessible location.
(4)
Purchasing multiple tickets.
(i)
General.
For each ticket for a wheelchair space purchased by an individual with a disability or a third-party purchasing such a ticket at his or her request, a public accommodation shall make available for purchase three additional tickets for seats in the same row that are contiguous with the wheelchair space, provided that at the time of purchase there are three such seats available. A public accommodation is not required to provide more than three contiguous seats for each wheelchair space. Such seats may include wheelchair spaces.
(ii)
Insufficient additional contiguous seats available.
If patrons are allowed to purchase at least four tickets, and there are fewer than three such additional contiguous seat tickets available for purchase, a public accommodation shall offer the next highest number of such seat tickets available for purchase and shall make up the difference by offering tickets for sale for seats that are as close as possible to the accessible seats.
(iii)
Sales limited to fewer than four tickets.
If a public accommodation limits sales of tickets to fewer than four seats per patron, then the public accommodation is only obligated to offer as many seats to patrons with disabilities, including the ticket for the wheelchair space, as it would offer to patrons without disabilities.
(iv)
Maximum number of tickets patrons may purchase exceeds four.
If patrons are allowed to purchase more than four tickets, a public accommodation shall allow patrons with disabilities to purchase up to the same number of tickets, including the ticket for the wheelchair space.
(v)
Group sales.
If a group includes one or more individuals who need to use accessible seating because of a mobility disability or because their disability requires the use of the accessible features that are provided in accessible seating, the group shall be placed in a seating area with accessible seating so that, if possible, the group can sit together. If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.
(5)
Hold and release of tickets for accessible seating.
(i)
Tickets for accessible seating may be released for sale in certain limited circumstances.
A public accommodation may release unsold tickets for accessible seating for sale to individuals without disabilities for their own use for a single event or series of events only under the following circumstances—
(A) When all non-accessible tickets (excluding luxury boxes, club boxes, or suites) have been sold;
(B) When all non-accessible tickets in a designated seating area have been sold and the tickets for accessible seating are being released in the same designated area; or
(C) When all non-accessible tickets in a designated price category have been sold and the tickets for accessible seating are being released within the same designated price category.
(ii)
No requirement to release accessible tickets.
Nothing in this paragraph requires a facility to release tickets for accessible seating to individuals without disabilities for their own use.
(iii)
Release of series-of-events tickets on a series-of-events basis.
(A)
Series-of-events tickets sell-out when no ownership rights are attached.
When series-of-events tickets are sold out and a public accommodation releases and sells accessible seating to individuals without disabilities for a series of events, the public accommodation shall establish a process that prevents the automatic reassignment of the accessible
seating to such ticket holders for future seasons, future years, or future series, so that individuals with disabilities who require the features of accessible seating and who become newly eligible to purchase tickets when these series-of-events tickets are available for purchase have an opportunity to do so.
(B)
Series-of-events tickets when ownership rights are attached.
When series-of-events tickets with an ownership right in accessible seating areas are forfeited or otherwise returned to a public accommodation, the public accommodation shall make reasonable modifications in its policies, practices, or procedures to afford individuals with mobility disabilities or individuals with disabilities that require the features of accessible seating an opportunity to purchase such tickets in accessible seating areas.
(6)
Ticket transfer.
Individuals with disabilities who hold tickets for accessible seating shall be permitted to transfer tickets to third parties under the same terms and conditions and to the same extent as other spectators holding the same type of tickets, whether they are for a single event or series of events.
(7)
Secondary ticket market.
(i) A public accommodation shall modify its policies, practices, or procedures to ensure that an individual with a disability may use a ticket acquired in the secondary ticket market under the same terms and conditions as other individuals who hold a ticket acquired in the secondary ticket market for the same event or series of events.
(ii) If an individual with a disability acquires a ticket or series of tickets to an inaccessible seat through the secondary market, a public accommodation shall make reasonable modifications to its policies, practices, or procedures to allow the individual to exchange his ticket for one to an accessible seat in a comparable location if accessible seating is vacant at the time the individual presents the ticket to the public accommodation.
(8)
Prevention of fraud in purchase of tickets for accessible seating.
A public accommodation may not require proof of disability, including, for example, a doctor's note, before selling tickets for accessible seating.
(i)
Single-event tickets.
For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the tickets for accessible seating has a mobility disability or a disability that requires the use of the accessible features that are provided in accessible seating, or is purchasing the tickets for an individual who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating.
(ii)
Series-of-events tickets.
For series-of-events tickets, it is permissible to ask the individual purchasing the tickets for accessible seating to attest in writing that the accessible seating is for a person who has a mobility disability or a disability that requires the use of the accessible features that are provided in the accessible seating.
(iii)
Investigation of fraud.
A public accommodation may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.
6. Amend § 36.303 as follows:
a. Revise paragraphs (b)(1), (b)(2), (c), and (d);
b. Redesignate paragraph (f) as paragraph (g); and
c. Add paragraph (f) to read as follows:
§ 36.303
Auxiliary aids and services.
(b) * * *
(1) Qualified interpreters on-site or through video remote interpreting (VRI) services; notetakers; real-time computer-aided transcription services; written materials; exchange of written notes; telephone handset amplifiers; assistive listening devices; assistive listening systems; telephones compatible with hearing aids; closed caption decoders; open and closed captioning, including real-time captioning; voice, text, and video-based telecommunications products and systems, including text telephones (TTYs), videophones, and captioned telephones, or equally effective telecommunications devices; videotext displays; accessible electronic and information technology; or other effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
(2) Qualified readers; taped texts; audio recordings; Brailled materials and displays; screen reader software; magnification software; optical readers; secondary auditory programs (SAP); large print materials; accessible electronic and information technology; or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
(c)
Effective communication.
(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.
(i) For purposes of this section, “companion” means a family member, friend, or associate of an individual seeking access to, or participating in, the goods, services, facilities, privileges, advantages, or accommodations of a public accommodation, who, along with such individual, is an appropriate person with whom the public accommodation should communicate.
(ii) The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
(2) A public accommodation shall not require an individual with a disability to bring another individual to interpret for him or her.
(3) A public accommodation shall not rely on an adult accompanying an individual with a disability to interpret or facilitate communication, except—
(i) In an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or
(ii) Where the individual with a disability specifically requests that the accompanying adult interpret or facilitate communication, the accompanying adult agrees to provide such assistance, and reliance on that adult for such assistance is appropriate under the circumstances.
(4) A public accommodation shall not rely on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available.
(d)
Telecommunications.
(1) When a public accommodation uses an automated-attendant system, including, but not limited to, voicemail and messaging, or an interactive voice
response system, for receiving and directing incoming telephone calls, that system must provide effective real-time communication with individuals using auxiliary aids and services, including text telephones (TTYs) and all forms of FCC-approved telecommunications relay systems, including Internet-based relay systems.
(2) A public accommodation that offers a customer, client, patient, or participant the opportunity to make outgoing telephone calls using the public accommodation's equipment on more than an incidental convenience basis shall make available accessible public telephones, TTYs, or other telecommunications products and systems for use by an individual who is deaf or hard of hearing, or has a speech impairment.
(3) A public accommodation may use relay services in place of direct telephone communication for receiving or making telephone calls incident to its operations.
(4) A public accommodation shall respond to telephone calls from a telecommunications relay service established under title IV of the ADA in the same manner that it responds to other telephone calls.
(5) This part does not require a public accommodation to use a TTY for receiving or making telephone calls incident to its operations.
(f)
Video remote interpreting (VRI) services.
A public accommodation that chooses to provide qualified interpreters via VRI service shall ensure that it provides—
(1) Real-time, full-motion video and audio over a dedicated high-speed, wide-bandwidth video connection or wireless connection that delivers high-quality video images that do not produce lags, choppy, blurry, or grainy images, or irregular pauses in communication;
(2) A sharply delineated image that is large enough to display the interpreter's face, arms, hands, and fingers, and the participating individual's face, arms, hands, and fingers, regardless of his or her body position;
(3) A clear, audible transmission of voices; and
(4) Adequate training to users of the technology and other involved individuals so that they may quickly and efficiently set up and operate the VRI.
7. Amend § 36.304 as follows:
a. Revise paragraph (d)(1);
b. Redesignate paragraph (d)(2) as (d)(3);
c. Amend newly redesignated paragraph (d)(3) by removing the reference to “(d)(1)” and adding “(d)(1) and (d)(2)” in its place;
d. Add paragraphs (d)(2) and (g)(4); and
e. Add an Appendix to paragraph (d) to read as follows:
§ 36.304
Removal of barriers.
(d) * * * (1) Except as provided in paragraph (d)(3) of this section, measures taken to comply with the barrier removal requirements of this section shall comply with the applicable requirements for alterations in § 36.402 and §§ 36.404 through 36.406 of this part for the element being altered. The path of travel requirements of § 36.403 shall not apply to measures taken solely to comply with the barrier removal requirements of this section.
(d)(2)(i)
Safe harbor.
Elements that have not been altered in existing facilities on or after March 15, 2012 and that comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards are not required to be modified in order to comply with the requirements set forth in the 2010 Standards.
(ii)(A) Before March 15, 2012, elements in existing facilities that do not comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards must be modified to the extent readily achievable to comply with either the 1991 Standards or the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).
(B) On or after March 15, 2012, elements in existing facilities that do not comply with the corresponding technical and scoping specifications for those elements in the 1991 Standards must be modified to the extent readily achievable to comply with the requirements set forth in the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5).
(iii) The safe harbor provided in § 36.304(d)(2)(i) does not apply to those elements in existing facilities that are subject to supplemental requirements (
i.e.,
elements for which there are neither technical nor scoping specifications in the 1991 Standards), and therefore those elements must be modified to the extent readily achievable to comply with the 2010 Standards. Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5). Elements in the 2010 Standards not eligible for the element-by-element safe harbor are identified as follows—
(A)
Residential facilities and dwelling units,
sections 233 and 809.
(B)
Amusement rides,
sections 234 and 1002; 206.2.9; 216.12.
(C)
Recreational boating facilities,
sections 235 and 1003; 206.2.10.
(D)
Exercise machines and equipment,
sections 236 and 1004; 206.2.13.
(E)
Fishing piers and platforms,
sections 237 and 1005; 206.2.14.
(F)
Golf facilities,
sections 238 and 1006; 206.2.15.
(G)
Miniature golf facilities,
sections 239 and 1007; 206.2.16.
(H)
Play areas,
sections 240 and 1008; 206.2.17.
(I)
Saunas and steam rooms,
sections 241 and 612.
(J)
Swimming pools, wading pools, and spas,
sections 242 and 1009.
(K)
Shooting facilities with firing positions,
sections 243 and 1010.
(L)
Miscellaneous.
(
1
) Team or player seating, section 221.2.1.4.
(
2
) Accessible route to bowling lanes, section 206.2.11.
(
3
) Accessible route in court sports facilities, section 206.2.12.
Appendix to § 36.304(d)
Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
Date
Requirement
Applicable standards
Before March 15, 2012
Elements that do not comply with the requirements for those elements in the 1991 Standards must be modified to the extent readily achievable
1991 Standards or 2010 Standards.
Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5)
On or after March 15, 2012
Elements that do not comply with the requirements for those elements in the 1991 Standards or that do not comply with the supplemental requirements (
i.e.,
elements for which there are neither technical nor scoping specifications in the 1991 Standards) must be modified to the extent readily achievable
2010 Standards.
Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5)
Elements not altered after March 15, 2012
Elements that comply with the requirements for those elements in the 1991 Standards do not need to be modified
Safe Harbor.
(g) * * *
(4) This requirement does not apply to guest rooms in existing facilities that are places of lodging where the guest rooms are not owned by the entity that owns, leases, or operates the overall facility and the physical features of the guest room interiors are controlled by their individual owners.
8. Revise § 36.308 to read as follows:
§ 36.308
Seating in assembly areas.
A public accommodation shall ensure that wheelchair spaces and companion seats are provided in each specialty seating area that provides spectators with distinct services or amenities that generally are not available to other spectators. If it is not readily achievable for a public accommodation to place wheelchair spaces and companion seats in each such specialty seating area, it shall provide those services or amenities to individuals with disabilities and their companions at other designated accessible locations at no additional cost. The number of wheelchair spaces and companion seats provided in specialty seating areas shall be included in, rather than in addition to, wheelchair space requirements set forth in table 221.2.1.1 in the 2010 Standards.
9. Amend § 36.309 by adding paragraphs (b)(1)(iv) through (vi) to read as follows:
§ 36.309
Examinations and courses.
(b)(1)* * *
(iv) Any request for documentation, if such documentation is required, is reasonable and limited to the need for the modification, accommodation, or auxiliary aid or service requested.
(v) When considering requests for modifications, accommodations, or auxiliary aids or services, the entity gives considerable weight to documentation of past modifications, accommodations, or auxiliary aids or services received in similar testing situations, as well as such modifications, accommodations, or related aids and services provided in response to an Individualized Education Program (IEP) provided under the Individuals with Disabilities Education Act or a plan describing services provided pursuant to section 504 of the Rehabilitation Act of 1973, as amended (often referred to as a Section 504 Plan).
(vi) The entity responds in a timely manner to requests for modifications, accommodations, or aids to ensure equal opportunity for individuals with disabilities.
10. Add § 36.311 to read as follows:
§ 36.311
Mobility devices.
(a)
Use of wheelchairs and manually-powered mobility aids.
A public accommodation shall permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.
(b)(1)
Use of other power-driven mobility devices.
A public accommodation shall make reasonable modifications in its policies, practices, or procedures to permit the use of other power-driven mobility devices by individuals with mobility disabilities, unless the public accommodation can demonstrate that the class of other power-driven mobility devices cannot be operated in accordance with legitimate safety requirements that the public accommodation has adopted pursuant to § 36.301(b).
(2)
Assessment factors.
In determining whether a particular other power-driven mobility device can be allowed in a specific facility as a reasonable modification under paragraph (b)(1) of this section, a public accommodation shall consider—
(i) The type, size, weight, dimensions, and speed of the device;
(ii) The facility's volume of pedestrian traffic (which may vary at different times of the day, week, month, or year);
(iii) The facility's design and operational characteristics (
e.g.,
whether its business is conducted indoors, its square footage, the density and placement of stationary devices, and the availability of storage for the device, if requested by the user);
(iv) Whether legitimate safety requirements can be established to permit the safe operation of the other power-driven mobility device in the specific facility; and
(v) Whether the use of the other power-driven mobility device creates a substantial risk of serious harm to the immediate environment or natural or cultural resources, or poses a conflict with Federal land management laws and regulations.
(c)(1)
Inquiry about disability.
A public accommodation shall not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual's disability.
(2)
Inquiry into use of other power-driven mobility device.
A public accommodation may ask a person using an other power-driven mobility device to provide a credible assurance that the mobility device is required because of the person's disability. A public accommodation that permits the use of an other power-driven mobility device by an individual with a mobility disability shall accept the presentation
of a valid, State-issued disability parking placard or card, or State-issued proof of disability, as a credible assurance that the use of the other power-driven mobility device is for the individual's mobility disability. In lieu of a valid, State-issued disability parking placard or card, or State-issued proof of disability, a public accommodation shall accept as a credible assurance a verbal representation, not contradicted by observable fact, that the other power-driven mobility device is being used for a mobility disability. A “valid” disability placard or card is one that is presented by the individual to whom it was issued and is otherwise in compliance with the State of issuance's requirements for disability placards or cards.
Subpart D—New Construction and Alterations
11. Amend § 36.403 by retaining the heading of paragraph (a), designating the text of paragraph (a) as paragraph (a)(1), adding paragraph (a)(2), and revising paragraph (f)(2)(iii) to read as follows:
§ 36.403
Alterations: Path of travel.
(a)
General.
(1) * * *
(2) If a private entity has constructed or altered required elements of a path of travel at a place of public accommodation or commercial facility in accordance with the specifications in the 1991 Standards, the private entity is not required to retrofit such elements to reflect the incremental changes in the 2010 Standards solely because of an alteration to a primary function area served by that path of travel.
(f) * * *
(2) * * *
(iii) Costs associated with providing accessible telephones, such a relocating the telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY);
12. Revise § 36.405 to read as follows:
§ 36.405
Alterations: Historic preservation.
(a) Alterations to buildings or facilities that are eligible for listing in the National Register of Historic Places under the National Historic Preservation Act, 16 U.S.C. 470
et seq.,
or are designated as historic under State or local law, shall comply to the maximum extent feasible with this part.
(b) If it is determined that it is not feasible to provide physical access to an historic property that is a place of public accommodation in a manner that will not threaten or destroy the historic significance of the building or the facility, alternative methods of access shall be provided pursuant to the requirements of subpart C of this part.
13. Revise § 36.406 to read as follows:
§ 36.406
Standards for new construction and alterations.
(a)
Accessibility standards and compliance date.
(1) New construction and alterations subject to §§ 36.401 or 36.402 shall comply with the 1991 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is before September 15, 2010, or if no permit is required, if the start of physical construction or alterations occurs before September 15, 2010.
(2) New construction and alterations subject to §§ 36.401 or 36.402 shall comply either with the 1991 Standards or with the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is on or after September 15, 2010 and before March 15, 2012, or if no permit is required, if the start of physical construction or alterations occurs on or after September 15, 2010 and before March 15, 2012.
(3) New construction and alterations subject to §§ 36.401 or 36.402 shall comply with the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is on or after March 15, 2012, or if no permit is required, if the start of physical construction or alterations occurs on or after March 15, 2012.
(4) For the purposes of this section, “start of physical construction or alterations” does not mean ceremonial groundbreaking or razing of structures prior to site preparation.
(5)
Noncomplying new construction and alterations.
(i) Newly constructed or altered facilities or elements covered by §§ 36.401 or 36.402 that were constructed or altered before March 15, 2012 and that do not comply with the 1991 Standards shall, before March 15, 2012, be made accessible in accordance with either the 1991 Standards or the 2010 Standards.
(ii) Newly constructed or altered facilities or elements covered by §§ 36.401 or 36.402 that were constructed or altered before March 15, 2012 and that do not comply with the 1991 Standards shall, on or after March 15, 2012, be made accessible in accordance with the 2010 Standards.
Appendix to § 36.406(a)
Compliance dates for new construction and alterations
Applicable standards
On or after January 26, 1993 and before September 15, 2010
1991 Standards.
On or after September 15, 2010 and before March 15, 2012
1991 Standards or 2010 Standards.
On or after March 15, 2012
2010 Standards.
(b)
Scope of coverage.
The 1991 Standards and the 2010 Standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site. Unless specifically stated otherwise, the advisory notes, appendix notes, and figures contained in the 1991 Standards and 2010 Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements.
(c)
Places of lodging.
Places of lodging subject to this part shall comply with the provisions of the 2010 Standards applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806 of the 2010 Standards.
(1)
Guest rooms.
Guest rooms with mobility features in places of lodging subject to the transient lodging
requirements of 2010 Standards shall be provided as follows—
(i) Facilities that are subject to the same permit application on a common site that each have 50 or fewer guest rooms may be combined for the purposes of determining the required number of accessible rooms and type of accessible bathing facility in accordance with table 224.2 to section 224.2 of the 2010 Standards.
(ii) Facilities with more than 50 guest rooms shall be treated separately for the purposes of determining the required number of accessible rooms and type of accessible bathing facility in accordance with table 224.2 to section 224.2 of the 2010 Standards.
(2)
Exception.
Alterations to guest rooms in places of lodging where the guest rooms are not owned or substantially controlled by the entity that owns, leases, or operates the overall facility and the physical features of the guest room interiors are controlled by their individual owners are not required to comply with § 36.402 or the alterations requirements in section 224.1.1 of the 2010 Standards.
(3)
Facilities with residential dwelling units and transient lodging units.
Residential dwelling units that are designed and constructed for residential use exclusively are not subject to the transient lodging standards.
(d)
Social service center establishments.
Group homes, halfway houses, shelters, or similar social service center establishments that provide either temporary sleeping accommodations or residential dwelling units that are subject to this part shall comply with the provisions of the 2010 Standards applicable to residential facilities, including, but not limited to, the provisions in sections 233 and 809.
(1) In sleeping rooms with more than 25 beds covered by this part, a minimum of 5% of the beds shall have clear floor space complying with section 806.2.3 of the 2010 Standards.
(2) Facilities with more than 50 beds covered by this part that provide common use bathing facilities shall provide at least one roll-in shower with a seat that complies with the relevant provisions of section 608 of the 2010 Standards. Transfer-type showers are not permitted in lieu of a roll-in shower with a seat, and the exceptions in sections 608.3 and 608.4 for residential dwelling units are not permitted. When separate shower facilities are provided for men and for women, at least one roll-in shower shall be provided for each group.
(e)
Housing at a place of education.
Housing at a place of education that is subject to this part shall comply with the provisions of the 2010 Standards applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806, subject to the following exceptions. For the purposes of the application of this section, the term “sleeping room” is intended to be used interchangeably with the term “guest room” as it is used in the transient lodging standards.
(1) Kitchens within housing units containing accessible sleeping rooms with mobility features (including suites and clustered sleeping rooms) or on floors containing accessible sleeping rooms with mobility features shall provide turning spaces that comply with section 809.2.2 of the 2010 Standards and kitchen work surfaces that comply with section 804.3 of the 2010 Standards.
(2) Multi-bedroom housing units containing accessible sleeping rooms with mobility features shall have an accessible route throughout the unit in accordance with section 809.2 of the 2010 Standards.
(3) Apartments or townhouse facilities that are provided by or on behalf of a place of education, which are leased on a year-round basis exclusively to graduate students or faculty and do not contain any public use or common use areas available for educational programming, are not subject to the transient lodging standards and shall comply with the requirements for residential facilities in sections 233 and 809 of the 2010 Standards.
(f)
Assembly areas.
Assembly areas that are subject to this part shall comply with the provisions of the 2010 Standards applicable to assembly areas, including, but not limited to, sections 221 and 802. In addition, assembly areas shall ensure that—
(1) In stadiums, arenas, and grandstands, wheelchair spaces and companion seats are dispersed to all levels that include seating served by an accessible route;
(2) In assembly areas that are required to horizontally disperse wheelchair spaces and companion seats by section 221.2.3.1 of the 2010 Standards and that have seating encircling, in whole or in part, a field of play or performance, wheelchair spaces and companion seats are dispersed around that field of play or performance area;
(3) Wheelchair spaces and companion seats are not located on (or obstructed by) temporary platforms or other movable structures, except that when an entire seating section is placed on temporary platforms or other movable structures in an area where fixed seating is not provided, in order to increase seating for an event, wheelchair spaces and companion seats may be placed in that section. When wheelchair spaces and companion seats are not required to accommodate persons eligible for those spaces and seats, individual, removable seats may be placed in those spaces and seats;
(4) In stadium-style movie theaters, wheelchair spaces and companion seats are located on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria—
(i) It is located within the rear 60% of the seats provided in an auditorium; or
(ii) It is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).
(g)
Medical care facilities.
Medical care facilities that are subject to this part shall comply with the provisions of the 2010 Standards applicable to medical care facilities, including, but not limited to, sections 223 and 805. In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient bedrooms required by section 223.2.1 of the 2010 Standards in a manner that is proportionate by type of medical specialty.
§ 36.407
[Removed and Reserved]
14. Remove and reserve § 36.407.
Subpart F—Certification of State Laws or Local Building Codes
§ 36.603
[Removed]
15. Remove § 36.603.
16. Redesignate § 36.604 as § 36.603 and revise it to read as follows:
§ 36.603
Preliminary determination.
Upon receipt and review of all information relevant to a request filed by a submitting official for certification of a code, and after consultation with the Architectural and Transportation Barriers Compliance Board, the Assistant Attorney General shall make a preliminary determination of equivalency or a preliminary determination to deny certification.
17. Redesignate § 36.605 as § 36.604, revise the introductory text to paragraph (a), and revise paragraphs (a)(2) and (b) to read as follows:
§ 36.604
Procedure following preliminary determination of equivalency.
(a) If the Assistant Attorney General makes a preliminary determination of equivalency under § 36.603, he or she
shall inform the submitting official, in writing, of that preliminary determination. The Assistant Attorney General also shall—
(2) After considering the information received in response to the notice described in paragraph (a) of this section, and after publishing a separate notice in the
Federal Register
, hold an informal hearing, in the State or local jurisdiction charged with administration and enforcement of the code, at which interested individuals, including individuals with disabilities, are provided an opportunity to express their views with respect to the preliminary determination of equivalency; and
(b) The Assistant Attorney General, after consultation with the Architectural and Transportation Barriers Compliance Board and consideration of the materials and information submitted pursuant to this section, as well as information provided previously by the submitting official, shall issue either a certification of equivalency or a final determination to deny the request for certification. The Assistant Attorney General shall publish notice of the certification of equivalency or denial of certification in the
Federal Register
.
18. Redesignate § 36.606 as § 36.605 and revise the first sentence of paragraph (a) to read as follows:
§ 36.605
Procedure following preliminary denial of certification.
(a) If the Assistant Attorney General makes a preliminary determination to deny certification of a code under § 36.603, he or she shall notify the submitting official of the determination. * * *
19. Redesignate § 36.607 as § 36.606 and add paragraph (d) to read as follows:
§ 36.606
Effect of certification.
(d) When the standards of the Act against which a code is deemed equivalent are revised or amended substantially, a certification of equivalency issued under the preexisting standards is no longer effective, as of the date the revised standards take effect. However, construction in compliance with a certified code during the period when a certification of equivalency was effective shall be considered rebuttable evidence of compliance with the Standards then in effect as to those elements of buildings and facilities that comply with the certified code. A submitting official may reapply for certification pursuant to the Act's revised standards, and, to the extent possible, priority will be afforded the request in the review process.
§ 36.608
[Redesignated as § 36.607]
20. Redesignate § 36.608 as § 36.607.
21. Redesignate Appendix A to part 36 as Appendix D to part 36 and add Appendix A to part 36 to read as follows:
Appendix A to Part 36—Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities
Note:
This Appendix contains guidance providing a section-by-section analysis of the revisions to 28 CFR part 36 published on September 15, 2010.
Section-By-Section Analysis and Response to Public Comments
This section provides a detailed description of the Department's changes to the title III regulation, the reasoning behind those changes, and responses to public comments received on these topics. The Section-by-Section Analysis follows the order of the title III regulation itself, except that if the Department has not changed a regulatory section, the unchanged section has not been mentioned.
Subpart A—General
Section 36.104 Definitions
“1991 Standards” and “2004 ADAAG”
The Department has included in the final rule new definitions of both the “1991 Standards” and the “2004 ADAAG.” The term “1991 Standards” refers to the ADA Standards for Accessible Design, originally published on July 26, 1991, and republished as Appendix D to 28 CFR part 36. The term “2004 ADAAG” refers to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the Americans with Disabilities Act and the Architectural Barriers Act Accessibility Guidelines, which were issued by the Access Board on July 23, 2004, codified at 36 CFR 1191, app. B and D (2009), and which the Department has adopted in this final rule. These terms are included in the definitions section for ease of reference.
“2010 Standards”
The Department has added to the final rule a definition of the term “2010 Standards.” The term “2010 Standards” refers to the 2010 ADA Standards for Accessible Design, which consist of the 2004 ADAAG and the requirements contained in subpart D of 28 CFR part 36.
“Direct Threat”
The final rule moves the definition of direct threat from § 36.208(b) to the definitions section at § 36.104. This is an editorial change. Consequently, § 36.208(c) becomes § 36.208(b) in the final rule.
“Existing Facility”
The 1991 title III regulation provided definitions for “new construction” at § 36.401(a) and “alterations” at § 36.402(b). In contrast, the term “existing facility” was not explicitly defined, although it is used in the statute and regulations for titles II and III.
See, e.g.,
42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150. It has been the Department's view that newly constructed or altered facilities are also existing facilities subject to title III's continuing barrier removal obligation, and that view is made explicit in this rule.
The classification of facilities under the ADA is neither static nor mutually exclusive. Newly constructed or altered facilities are also existing facilities. A newly constructed facility remains subject to the accessibility standards in effect at the time of design and construction, with respect to those elements for which, at that time, there were applicable ADA Standards. That same facility, however, after construction, is
also
an existing facility, and subject to the public accommodation's continuing obligation to remove barriers where it is readily achievable to do so. The fact that the facility is also an existing facility does not relieve the public accommodation of its obligations under the new construction requirements of this part. Rather, it means that in addition to the new construction requirements, the public accommodation has a continuing obligation to remove barriers that arise, or are deemed barriers, only after construction. Such barriers include but are not limited to the elements that are first covered in the 2010 Standards, as that term is defined in § 36.104.
At some point, the same facility may undergo alterations, which are subject to the alterations requirements in effect at that time. This facility remains subject to its original new construction standards for elements and spaces not affected by the alterations; the facility is subject to the alterations requirements and standards in effect at the time of the alteration for the elements and spaces affected by the alteration;
and,
throughout, t
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