Nondiscrimination on the Basis of Disability in State and Local Government Services; Public Accommodations and Commercial Facilities; Accessibility Standards

SUMMARY: This proposed rule would amend the regulations of the

Department of Justice (Department) implementing titles II and III of

the Americans with Disabilities Act (ADA) to incorporate, as the ADA

Standards for Accessible Design, the ADA Accessibility Guidelines for

Buildings and Facilities as they are revised in the interim rule with

request for comments being published by the Architectural and

Transportation Barriers Compliance Board (Access Board) elsewhere in

this issue of the Federal Register. In so doing, the proposed rule

would establish new ADA standards for construction and alterations

covered by the Department's title II regulations. (The guidelines set

forth in the Access Board's interim rule are effective only as guidance

for the Departments of Justice and Transportation; they have no effect

on the public and should not be used by the public until such time as

the Department of Justice and the Department of Transportation adopt

them as standards.) The proposed rule would also add new enforcement

procedures to subpart F of the title II regulation.

DATES: To be assured of consideration, comments must be in writing and

must be received on or before August 19, 1994. Comments that are

received after the closing date will be considered to the extent

practicable.

ADDRESSES: Comments on this proposed rule should be sent to: Merrily A.

Friedlander, Acting Chief, Coordination and Review Section, Civil

Rights Division, U.S. Department of Justice, Rulemaking Docket 007,

P.O. Box 66118, Washington, DC 20035-6118. However, comments on the

proposed ADA Standards for Accessible Design, published as an interim

rule by the Access Board elsewhere in this issue of the Federal

Register, should be sent to: Office of the General Counsel,

Architectural and Transportation Barriers Compliance Board, 1331 F

Street NW., suite 1000, Washington, DC 20004-1111. For further

information on comments, see the beginning of SUPPLEMENTARY

INFORMATION.

Comments submitted to the Department of Justice will be available

for public inspection in Room 4014, 1425 New York Avenue NW.,

Washington, DC, from 9 a.m. to 5 p.m., Monday through Friday, except

legal holidays, from July 5, 1994 until the Department publishes this

rule in final form. Persons who need assistance to review the comments

will be provided with appropriate aids such as readers or print

magnifiers.

FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Acting Chief,

Coordination and Review Section, Civil Rights Division, U.S. Department

of Justice, Washington, DC 20530, (202) 514-0301 (Voice), (202) 514-

0383 (TDD) (the Division's ADA Information Line). These telephone

numbers are not toll-free numbers.

Copies of this rule are available in the following alternative

formats: large print, Braille, electronic file on computer disk, and

audio-tape. Copies may be obtained from the Coordination and Review

Section at (202) 514-0301 (Voice) or (202) 514-0383 (TDD). The rule is

also available on electronic bulletin board at (202) 514-6193. These

telephone numbers are not toll-free numbers.

SUPPLEMENTARY INFORMATION: All timely comments received by the Access

Board on its guidelines published December 21, 1992 (57 FR 60612), and

on its interim rule published today in the Federal Register will be

deemed by the Department to have been submitted in response to this

proposed rule and will be thoroughly analyzed and considered by the

Department prior to the adoption of any final rule. Therefore, it is

not necessary for any comments submitted to the Board on its proposed

or interim rules to be resubmitted to the Department.

Background

On July 26, 1991, the Department published its final rules

implementing titles II and III of the Americans with Disabilities Act,

Pub. L. 101-336, 42 U.S.C. 12131-12134 and 12181-12189, which prohibits

discrimination on the basis of disability by public entities and in

places of public accommodation and commercial facilities. 56 FR 35694,

35544. The Department's implementing regulations were codified at 28

CFR, parts 35 and 36. Subtitle A of title II of the ADA protects

qualified individuals with disabilities from discrimination on the

basis of disability in the services, programs, or activities of all

state and local governments. It extends the prohibition of

discrimination in federally assisted programs established by section

504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, to all activities

of state and local governments, including those that do not receive

federal financial assistance, and incorporates specific prohibitions of

discrimination on the basis of disability from titles I, III, and V of

the ADA. Title III of the ADA protects qualified individuals with

disabilities from discrimination on the basis of disability by public

accommodations and in commercial facilities.

This proposed rule would amend 28 CFR 35.151 and 36.406 to adopt

the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG),

as revised by the Access Board in their interim rule that is published

elsewhere in this issue of the Federal Register, as the ADA Standards

for Accessible Design (ADA Standards) for new construction and

alterations covered by the Department's title II regulation. The ADA

Standards would apply to facilities designed, constructed, or altered

after the effective date of the amendment to Sec. 35.151. The proposed

rule would also remove the original ADA Standards for Accessible

Design, 28 CFR part 36, Appendix A; add the ADA Standards, as amended

by the Access Board's interim rule, as Appendix A to part 37; and amend

parts 35 and 36 to correctly reference the redesignated ADA Standards.

Finally, the proposed rule would amend the Compliance Procedures in

subpart F of part 35 to incorporate procedures used under agency

regulations implementing section 504 of the Rehabilitation Act for

federally assisted programs and activities.

Accessibility Standard

Section 504 of the ADA requires the Access Board to issue

supplemental Minimum Guidelines and Requirements for Accessible Design

of buildings and facilities subject to the ADA, including titles II and

III. Sections 204(c) and 306(c) of the ADA provide that the Attorney

General shall promulgate regulations implementing titles II and III

that are consistent with the Access Board's ADA guidelines. In issuing

its final title II regulation, the Department explained that it

intended to amend the regulation to adopt the new accessibility

standards for title II after the Access Board had amended its ADA

Accessibility Guidelines to include specific requirements applicable to

buildings and facilities operated by entities subject to title II. The

Access Board is now publishing its interim guidelines for title II

elsewhere in this issue of the Federal Register, and this proposed rule

would adopt those guidelines. Rather than having the ADA Standards for

Accessible Design published twice, as an appendix to both parts 35 and

36, this proposed rule would adopt the revised ADA Standards as

Appendix A to part 37. Parts 35 and 36 are amended to reference those

standards.

The Access Board received public comments on its proposed

guidelines, published on December 21, 1992, and is soliciting comments

on its interim rule, which is published elsewhere in this issue of the

Federal Register. The Department, as a member of the Access Board, will

be actively involved in the review and analysis of the comments that

the Access Board receives on its interim guidelines and in making any

revisions to the guidelines in response to those comments. Therefore,

the Department has proposed to adopt the guidelines, as revised by the

Access Board in its final rule, as the ADA Standards for Accessible

Design. Comments submitted to the Access Board in response either to

its Notice of Proposed Rulemaking or its Interim Rule, therefore, will

also be considered by the Department as comments on this proposed rule,

and need not be separately submitted to the Department. Comments

previously received by the Access Board concerning provision of unisex

restrooms will be considered by the Department of Justice through

future rulemaking or other action.

28 CFR 35.151 would be replaced by Secs. 35.151-35.155 of the

proposed regulation. At present, Sec. 35.151 provides that those

buildings that are constructed or altered by, on behalf of, or for the

use of a public entity shall be designed, constructed, or altered to be

readily accessible to and usable by individuals with disabilities.

Current Sec. 35.151(c) establishes two standards for accessible new

construction and alteration. Under paragraph (c), design, construction,

or alteration of facilities in conformance with the Uniform Federal

Accessibility Standards (UFAS) or with the Americans with Disabilities

Act Accessibility Guidelines for Buildings and Facilities (ADAAG) is

deemed to comply with the requirements of this section with respect to

those facilities (except that, if ADAAG is chosen, the elevator

exemption does not apply). ADAAG was initially developed by the Access

Board as a guideline for accessibility to buildings and facilities that

are subject to title III. It was adopted by the Department as the

standard for places of public accommodation and commercial facilities

under title III of the ADA and was published as Appendix A to the

Department's regulation implementing title III, 28 CFR part 36, and

amended on January 18, 1994, 59 FR 2674. This rule removes that

appendix and adds the Access Board's revised guidelines as Appendix A

to 28 CFR part 37.

The proposed rule would revise 28 CFR 35.151 and add four new

sections, 28 CFR 35.152-35.155, which follow the format of parallel

provisions in the Department's title III regulation at 28 CFR part 36,

subpart D.

Section 35.150 Existing Facilities

The proposed rule would amend Sec. 35.150(a)(2), which provides

that, in ensuring access to programs in existing facilities, a public

entity is not required to take any action that would threaten or

destroy the historic significance of an historic property. The proposed

amendment to Sec. 35.150(a)(2) would incorporate the procedures set out

in section 4.1.7 of the ADA Standards for determining whether a

physical alteration would threaten or destroy the historic significance

of an historic property.

The proposed rule would also amend Sec. 35.150(b)(1) to make clear

that the path of travel requirements of Sec. 35.153 do not apply to

measures taken solely to comply with program accessibility

requirements. This amendment is consistent with Sec. 36.304(d)(1) of

the title III regulation, which states that ``[t]he path of travel

requirements of Sec. 36.403 shall not apply to measures taken solely to

comply with the barrier removal requirements of this section.''

Section 35.151 New Construction

Section 35.151, as revised, would require that newly constructed

facilities be readily accessible to and usable by individuals with

disabilities. Paragraph 35.151(b)(2) of the proposed rule incorporates

the ADA's ``structural impracticability'' exception for new

construction. Under that exception, in new construction, full

compliance with the requirements of the ADA Standards is not required

where a public entity can demonstrate that it is structurally

impracticable to meet the requirements. However, full compliance will

be considered structurally impracticable only in those rare

circumstances when the unique characteristics of terrain prevent the

incorporation of accessibility features.

The statute dictates that regulations promulgated under title II of

the ADA ``shall be consistent with [the other titles of] this Act'' as

well as with section 504 of the Rehabilitation Act of 1973. Pub. L. No.

101-336, Sec. 204(b). Furthermore, the legislative history of the ADA

indicates that ``the forms of discrimination prohibited by [title II

are] identical to those set out in the applicable provisions of titles

I and III.'' H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84

(1990). Thus the structural impracticability exception for public

accommodations and commercial facilities contained in the Department of

Justice title III regulations at 28 CFR 36.401(c) has been incorporated

in Sec. 35.151 and is included in the ADA Standards at

Sec. 4.1.1(5)(a). Other revisions to this rule and to the ADA Standards

that render this rule and the ADA Standards consistent with title III,

which are discussed below, are based on this same statutory mandate and

legislative history.

Consistent with the legislative history of the ADA, the

Department's proposed rule states that the structural impracticability

exception will apply only in rare and unusual circumstances where

unique characteristics of terrain make accessibility unusually

difficult. This exception is the same as the exception in the

Department's title III regulation, 28 CFR 36.401(c), and is narrower

than the exception in the Department of Housing and Urban Development's

Fair Housing Accessibility Guidelines (56 FR 9472 (1991)), which

generally would allow exceptions from accessibility requirements, or

allow compliance with less stringent requirements, on sites with slopes

exceeding 10%.

The limited structural impracticability exception adopted by the

proposed rule would allow deviations from accessibility requirements

only where unique characteristics of terrain prevent the incorporation

of accessibility features or where providing accessibility would

destroy the physical integrity of a facility. A situation in which a

building must be built on stilts because of its location in marshlands

or over water is an example of one of the few situations in which the

exception for structural impracticability would apply.

In addition, if full compliance with the accessibility standards

would be structurally impracticable, compliance is required to the

extent that it is not structurally impracticable. Any portion of the

facility that can be made accessible must be made accessible to the

extent that it is not structurally impracticable. In addition, if

providing accessibility to individuals with certain disabilities (e.g.,

those who use wheelchairs) would be structurally impracticable,

accessibility must nonetheless be ensured to persons with other types

of disabilities (e.g., those who use crutches or who have sight,

hearing, or mental impairments) in accordance with this section.

Section 35.152 Alterations: General

New Sec. 35.152 of the proposed rule establishes the requirements

for alterations. It includes a definition of ``alteration'' based on

the Department's title III regulation. The term ``resurfacing'' is

added to this definition to be consistent with the Access Board's

proposed change to the definition of alteration in ADAAG Sec. 3.5. It

also adds a definition of the phrase ``to the maximum extent

feasible,'' as used in Sec. 35.152(a), which requires that alterations

be done, to the maximum extent feasible, in such manner that the

altered portion of the facility is accessible. That proposed definition

is taken from the Department's title III regulation, 28 CFR 36.402(c),

and provides that the phrase applies to the occasional case where the

nature of an existing facility makes it virtually impossible to comply

fully with applicable accessibility standards through a planned

alteration. In the occasional cases in which full compliance is

impossible, alterations shall provide the maximum physical

accessibility feasible. Like the structural impracticability exception

for new construction, it requires that the facility be made accessible

to persons with other types of disabilities even if providing

accessibility for individuals who use wheelchairs would not be

feasible.

Section 35.153 Alterations: Path of Travel

Proposed Sec. 35.153, Alterations: Path of Travel, is also based on

the title III regulation. UFAS and ADAAG both contain requirements for

provision of an accessible ``path of travel'' to the altered area when

an existing facility is altered, although the circumstances that

trigger the requirements are somewhat different under each statute.

Under Sec. 4.1.6(3) of UFAS, an accessible route to the altered area,

an accessible entrance, and (where applicable) accessible toilet

facilities must be provided when a substantial alteration is made to an

existing building. An alteration is considered ``substantial'' if the

total cost of all alterations within any twelve-month period amounts to

50% or more of the full and fair cash value of the building. The

proposed rule eliminates the UFAS ``substantial alteration'' basis for

path of travel requirements because it eliminates UFAS as an option.

The path of travel requirements of proposed Sec. 35.153 are based

on section 303(a)(2) of the ADA, which provides that, when an entity

undertakes an alteration to a place of public accommodation or

commercial facility that affects or could affect the usability of or

access to an area that contains a primary function, the entity shall

ensure that, to the maximum extent feasible, the path of travel to the

altered area, and the restrooms, telephones, and drinking fountains

serving the altered area, are readily accessible to and usable by

individuals with disabilities, including individuals who use

wheelchairs.

Paragraph (b)(1) of proposed Sec. 35.153 provides that areas such

as mechanical rooms, boiler rooms, supply storage rooms, employee

lounges and locker rooms, janitorial closets, entrances, and corridors

are not areas containing a primary function. Nor are restrooms areas

containing a primary function unless the provision of restrooms is the

major reason that the facility is maintained by a public entity, such

as at a highway rest stop. In that situation, a restroom would be

considered to be an ``area containing a primary function'' of the

facility.

The requirement for an accessible path of travel does not apply,

however, to the extent that the cost and scope of alterations to the

path of travel is disproportionate to the cost of the overall

alteration, as determined under criteria established by the Attorney

General. Sections 227 and 242 of the ADA adopt the same requirement for

public transportation facilities under title II.

Section 4.1.6(2) of the ADA Standards, which is not modified by the

Access Board's proposed amendments, adopts the statutory path of travel

requirement, and Sec. 36.403 of the Department's title III regulation

establishes the criteria for determining when the cost of alterations

to the path of travel are ``disproportionate'' to the cost of the

overall alteration. The proposed rule would add a new Sec. 35.153(d) to

adopt the same disproportionality criteria for facilities altered by

public entities as are applied to private entities under title III.

Alterations made to provide an accessible path of travel to the altered

area would be deemed disproportionate to the overall alteration when

the cost exceeds 20% of the cost of the alteration to the primary

function area.

Section 35.154 Alterations: Historic Preservation

Proposed Sec. 35.154 would incorporate the procedures set out in

section 4.1.7 of the ADA Standards for determining whether a physical

alteration would threaten or destroy the historic significance of an

historic property and would replace Sec. 35.151(d) of the Department's

current title II regulation.

Section 35.155 Standards for New Construction and Alterations

Proposed Sec. 35.155 provides that, as of the effective date of

this amendment, new construction and alterations subject to the

regulation shall comply with the ADA Standards for Accessible Design

published as Appendix A to 28 CFR part 37 in this publication. Appendix

A to 28 CFR part 37, which the proposed rule would adopt as the ADA

Standards for Accessible Design, would incorporate the text of the

revised ADAAG, which is published as an interim rule elsewhere in

today's Federal Register.

As originally published, the ADA Standards consisted of nine main

sections and a separate appendix. Sections 1 through 3 contain general

provisions and definitions. Section 4 contains scoping provisions and

technical specifications applicable to all covered buildings and

facilities. Sections 5 through 9 are special application sections and

contain additional requirements for restaurants and cafeterias, medical

care facilities, business and mercantile facilities, libraries, and

transient lodging. Section 10, which established requirements for

transportation facilities, was added on January 18, 1994 (59 FR 2674).

The appendix to the ADA Standards contains additional information to

aid in understanding the technical specifications.

The Department is now proposing to supplement the original ADA

Standards by adding specific requirements applicable to public

entities. These requirements are set out in sections 11 through 14 of

the Access Board's interim guidelines, which are special application

sections for facilities covered by title II. Section 11 would apply to

Judicial, Legislative, and Regulatory Facilities; section 12 to

Detention and Correctional Facilities; section 13 to Accessible

Residential Housing subject to title II; and section 14 to Public

Rights-of-Way. The Department's proposed rule would also amend certain

general requirements of the ADA Standards to clarify application to

facilities covered by title II. (It would, for example, clarify that

the elevator exemption applies to places of public accommodation and

commercial facilities, but not to facilities covered by title II.)

Section 35.151 of the current regulation applies to design,

construction, and alteration of facilities if the construction was

commenced after the effective date of the regulation, January 26, 1992.

Facilities under design for new construction on that date were governed

by that section if the date that bids were invited fell after the

effective date. Alterations were deemed to have commenced after January

26, 1992, if the physical alteration of the property began after that

date.

Paragraph (c) of Sec. 35.151, which provides that public entities

could use either UFAS or ADAAG as the accessibility standard, would be

replaced by Sec. 35.155, which adopts the ADA Standards (i.e., the

Access Board's ADAAG as revised in the interim rule) as the applicable

standard, as of the effective date of the amendment. Consistent with

federal practice under section 504, the new standard to be adopted by

this proposed amendment would not be applied retroactively. Facilities

that were designed, constructed, or altered in conformance with the

requirements of Sec. 35.151 prior to the effective date of this

proposed amendment would not be required to be retrofitted to conform

to the new standard.

Thus, newly constructed or altered facilities would continue to be

covered by either UFAS or ADAAG if the construction or alteration

commenced between January 26, 1992, and the effective date of the

proposed amendments.

Proposed Sec. 35.155 could create a potential conflict between the

revised regulation and the existing agency regulations implementing

section 504 of the Rehabilitation Act for federally assisted programs.

These section 504 regulations require that newly constructed or altered

facilities be readily accessible to and usable by individuals with

disabilities and provide that facilities designed, constructed, or

altered in conformance with UFAS shall be deemed to comply with that

requirement. Public entities that receive federal financial assistance,

therefore, would be required by this regulation to follow the ADA

Standards, while, under section 504, they could also be required to

follow UFAS. This overlap between the requirements of title II of the

ADA and section 504 of the Rehabilitation Act was one of the reasons

that the current regulation allows public entities the option of using

either UFAS or ADAAG. Pursuant to its authority under Executive Order

12,250 for coordination of implementation and enforcement of section

504, therefore, the Department has advised the federal agencies that

have regulations implementing section 504 for their federally assisted

programs that facilities designed, constructed, or altered by a public

entity in conformance with the proposed ADAAG should be deemed to

comply with the requirements for new construction and alterations of

any regulation implementing section 504 of the Rehabilitation Act that

applies to that public entity. Private entities that receive federal

financial assistance would continue to be governed by the standards in

any applicable regulation implementing section 504. It is expected

that, when ADA Standards proposed in this rule are finalized, the

agencies with enforcement responsibilities under section 504 will amend

their regulations to adopt the ADA Standards as the standard for new

construction and alterations. In the interim, the agencies that enforce

section 504 should not require public entities to conform to both UFAS

and ADAAG.

Enforcement Procedures

Subpart F of the current regulation establishes administrative

procedures for enforcement of title II of the ADA. Section 203 of the

ADA adopts the ``remedies, procedures, and rights'' provided in section

505 of the Rehabilitation Act, 29 U.S.C. 794a, as the enforcement

procedures for title II. Section 505, in turn, incorporates by

reference the remedies, procedures, and rights set forth in title VI of

the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Section 204

of the ADA, which requires the Department to issue regulations to

implement subtitle A of title II, requires that the regulations be

consistent with the section 504 coordination regulation for federally

assisted programs and activities at 28 CFR Part 41. The House Committee

on Education and Labor explained that it expected the Attorney General

to use the section 504 enforcement procedures as the model for title II

enforcement. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98

(1990). See also S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58

(1989).

As required by sections 203 and 204(b) of the ADA, the proposed

enforcement procedures are the procedures for enforcement of section

504, which, in turn, adopt the enforcement procedures for title VI.

Title VI, which prohibits discrimination on the basis of race, color,

or national origin in federally assisted programs and activities, is

enforced by the federal agencies that provide the federal financial

assistance to the covered programs and activities in question. If

voluntary compliance cannot be achieved, federal agencies enforce title

VI either by the termination of federal funds to a program or activity

that is found to discriminate, following an administrative hearing, or

by a referral to the Department of Justice for judicial enforcement.

Title II of the ADA extended the requirements of section 504 to all

services, programs, and activities of state and local governments, not

only those that receive federal financial assistance. Subpart F of the

Department's original regulation establishes basic procedures to be

followed by the agencies designated in subpart G for processing

complaints against state and local government entities when the

designated agency does not have jurisdiction under section 504. As

required by section 204(b) of the ADA, these procedures are consistent

with the Department's coordination regulation for section 504 of the

Rehabilitation Act, 28 CFR 41.5(a)(1), which directs agencies to adopt

the enforcement procedures of their title VI regulations for

enforcement of section 504. Although section 203 of the ADA mandates

that the title II procedures be the same as the section 504 procedures,

the final rule did not detail procedures for investigations other than

those based on individual complaints. Nor did it include requirements

for cooperation by public entities in investigations, as required under

title VI. This proposed rule would clarify Secs. 35.172 and 35.174 of

subpart F by specifically incorporating the language of the regulations

implementing title VI and section 504 for federally assisted programs

with respect to those provisions.

Section 35.172 of the Department's current regulation requires

designated agencies to investigate all complete complaints for which

they were responsible as determined under Sec. 35.171. It requires the

designated agency to issue a Letter of Findings at the conclusion of

the investigation if the complaint was not resolved informally, and to

attempt to negotiate a voluntary compliance agreement if a violation

was found. It does not, however, include specific procedural

requirements for investigations, and does not address compliance

reviews that are not based on individual complaints.

Proposed Sec. 35.172, captioned Investigations and Compliance

reviews, makes clear that the same procedures that apply to complaint

investigations also apply to compliance reviews that are not initiated

by receipt of a complaint, but rather are based on other information

indicating that discrimination exists in a service, program, or

activity covered by this part. This provision is consistent with the

Department's procedures for enforcing title VI at 28 CFR 42.107, as

required by the section 504 coordination regulation at 28 CFR

41.5(a)(1).

Paragraph (e) of proposed Sec. 35.172 explicitly spells out the

agency's authority to require a public entity to cooperate in the

investigation by permitting access by the designated agency to its

records and other sources of information and to its facilities. It also

makes clear that access by the designated agency may not be barred on

the basis of considerations of privacy or confidentiality and that

confidential information obtained by the designated agency shall not be

disclosed except where necessary in formal enforcement proceedings or

where otherwise required by law. These provisions of the proposed rule

are based on the enforcement procedures for title VI and section 504 in

federally assisted programs, e.g., 28 CFR 42.106 (Department of Justice

title VI regulation, as incorporated in the Department of Justice

section 504 regulation by 28 CFR 42.530); 45 CFR 80.6, 80.7 (Department

of Health and Human Services).

Section 35.173 of the current regulation establishes requirements

for voluntary compliance agreements and would not be changed by the

proposed rule.

Section 35.174 of the current regulation and Sec. 35.174(a) of the

proposed regulation provide for referral of a matter to the Department

of Justice when a public entity declines to enter into voluntary

compliance negotiations or when negotiations are unsuccessful. The

proposed rule adds a new Sec. 35.174(b), which provides that the

designated agency may refer the matter to the Department with a

recommendation for appropriate action or use any other means authorized

by law to achieve compliance when there appears to be a failure or

threatened failure to comply with this part that cannot be corrected by

informal means. This provision is taken from language in existing title

VI and section 504 regulations for federally assisted programs. See,

e.g., 28 CFR 42.108; 45 CFR 80.8.

ADA Standards for Accessible Design

This proposed rule would amend the regulations of the Department of

Justice implementing titles II and III of the ADA to incorporate, as

the ADA Standards for Accessible Design, the ADA Accessibility

Guidelines for Buildings and Facilities, currently Appendix A to 28 CFR

Part 36, as they are revised in the Access Board's interim rule

published elsewhere in this issue of the Federal Register. (The

guidelines set forth in the Access Board's interim rule are effective

only as guidance for the Departments of Justice and Transportation;

they have no effect on the public and should not be used by the public

until such time as the Department of Justice and the Department of

Transportation adopt them as standards.) The ADA Standards will be set

forth in full in the new part 37 of 28 CFR when this rule is printed in

final.

The ADA Standards set out in the Access Board's interim rule

supplement the original ADA Standards by adding specific requirements

applicable to public entities. These requirements are set out in

sections 11 through 14 of the Access Board's interim guidelines, which

are special application sections for facilities covered by title II.

Section 11 would apply to Judicial, Legislative, and Regulatory

Facilities; section 12 to Detention and Correctional Facilities;

section 13 to Accessible Residential Housing subject to title II; and

section 14 to Public Rights-of-Way. For a section-by-section analysis

of these requirements, see the Access Board's preamble to its interim

rule published in today's Federal Register.

In addition to purely editorial changes, the Access Board's interim

rule contains several substantive changes that needed to be made to

Secs. 3, 4, 7, and 10 of ADAAG, either as a result of the addition of

new sections 11-14 or to make certain provisions of ADAAG specifically

applicable to title II facilities. These changes are discussed below.

In Sec. 3.5, the definition of ``alteration'' is revised to

explicitly cover pedestrian facilities in the public right-of-way and

to include resurfacing. This change is consistent with the decision in

Kinney v. Yerusalim, 812 F. Supp. 547 (E.D.Pa. 1993), aff'd, 9 F.3d

1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994), holding that

resurfacing of a street constitutes an alteration under the ADA. Also

in Sec. 3.5, definitions are being added for the following terms:

continuous passage, public right-of-way, public sidewalk, public

sidewalk curb ramp, principal public entrance, site infeasibility, and

technically infeasible; and the term text telephone is being replaced

with the term TTY. Finally, the definition of ``transient lodging'' is

revised to include residential facilities rather than facilities that

contain one or more dwelling units.

The general exception in Sec. 4.1.1(5)(b)(i) is expanded to include

all raised areas used primarily for purposes of security or life or

fire safety; several more examples are added to the non-occupiable

spaces listed in Sec. 4.1.1(5)(b)(ii); and Sec. 4.1.1(5)(b)(iii) is

added to exempt single-occupant structures accessed only by passageways

below grade or elevated above grade, such as certain toll booths.

Exception 1 to Sec. 4.1.3(5) is expanded to exempt the upper level

of drawbridge towers, boat traffic towers, lock and dam control

stations, train dispatching towers, and similar structures less than

three stories and not open to the general public if the upper level

houses no more than five persons and is less than 500 square feet.

Exception 4 to Sec. 4.1.3(5) is expanded to allow platform lifts to

provide access to raised judges' benches, clerks' stations, speakers'

rostrums, raised daises, jury boxes, and witness stands, and to connect

levels within an individual dwelling unit.

Exception 5 is added to Sec. 4.1.3(5) to exempt the cab level and,

in some instances, the penultimate floor of air traffic control towers.

Language is added to Sec. 4.1.3(8)(a)(i) to require that, in

facilities subject to title II, all planned principal public entrances

shall be included within the 50% of public entrances required to be

accessible.

Section 4.1.3(17)(c)(ii) is expanded to require that, in stadiums,

arenas, and convention centers subject to title II, at least one public

TTY shall be provided on each floor level having a public pay

telephone.

Sections 4.1.3(17)(c) (iv) and (v) are added to require that if an

interior public pay telephone is provided in a public use area of a

facility covered by title II, at least one interior public TTY shall be

provided in at least one public use area, and if an interior public pay

telephone is provided in the secured area of a detention or

correctional facility subject to section 12, then at least one public

TTY shall also be provided in at least one secured area.

An exception is added to Sec. 4.1.3(17)(d) to exempt the secured

areas of detention or correctional facilities where shelves and outlets

are prohibited for purposes of security or safety.

Section 4.1.3(22) is added to require that permanently-installed

swimming pools subject to title II shall be designed so as to provide

at least one means of access into the water, if such swimming pools are

intended for recreational purposes and not intended solely for diving

or wading.

The previously-reserved exception to Sec. 4.1.7(1)(a) is added to

allow alternative methods of access if it is determined that it is not

feasible to provide physical access to a qualified historic building or

facility in a manner that will not threaten or destroy the historic

significance of the building or facility.

Section 7.2(3) is added to cover title II facilities, and requires

that, where counters have cash registers and are provided for the sale

or distribution of goods or services to the public, at least one of

each type shall comply with 7.2(1); at counters that may not have cash

registers but at which goods or services are sold or distributed, a

portion of the main counter shall be accessible or an accessible

auxiliary counter shall be provided in close proximity; and at counter

or teller windows with solid partitions or security glazing separating

personnel from the public, at least one of each type shall provide a

method to facilitate voice communication that is accessible to both

individuals who use wheelchairs and individuals who have difficulty

bending or stooping.

Section 10.4.1(8), which was previously reserved, is added to

require that, in airports covered by title II, at least one accessible

route shall be provided through fixed security barriers, and where

security barriers incorporate equipment, such as metal detectors, which

cannot be made accessible, an accessible route shall be provided

adjacent to such security screening devices. An exception is also added

to this section to exempt doors, doorways, and gates designed to be

operated only by security personnel from the requirements of 4.13.6,

4.13.9, 4.13.11, and 4.13.12.

Finally, appendix notes are added for the following sections: 3.5

(definition of transient lodging); 4.1.3(8)(a)(i) (public entrances);

4.1.3(8)(b) (path of travel to building entrances); 7.2(3)(iii)

(counter or teller windows with partitions); and 10.4.1(8) (security

systems in transportation facilities).

Regulatory Process Matters

This notice of proposed rulemaking has been reviewed by the Office

of Management and Budget under Executive Order 12866. The Access Board

has analyzed the impact of applying its proposed amendments to ADAAG to

entities covered by titles II and III of the ADA and has determined

that they are a significant regulatory action for purposes of Executive

Order 12866. The Access Board has prepared a Regulatory Assessment,

which includes a cost impact analysis for certain accessibility

elements and a discussion of the regulatory alternatives considered.

Adoption of the revised ADA Standards as the standards for title II is,

therefore, also a significant regulatory action to which the Access

Board's Regulatory Assessment would apply. Comments submitted to the

Access Board on its Regulatory Assessment will also be considered by

the Department as comments on this proposed rule.

The Access Board has determined that this proposed rule will have a

significant economic impact on a substantial number of small entities

and, therefore, has included the flexibility analysis required by the

Regulatory Flexibility Act in its Regulatory Assessment. The Access

Board has made every effort to lessen the economic impacts of its

proposed rule on small entities, but recognizes that such impacts are

the necessary result of the mandate of the ADA itself. The Access

Board's analysis also applies to the Department's proposed adoption of

the revised ADAAG. The Department's proposed procedural amendments will

not have a significant economic impact on small entities.

The Access Board has made every effort to lessen the impact of its

proposed guidelines on state and local governments, but recognizes that

the guidelines will have some federalism impacts. These impacts are

discussed in the Access Board's Regulatory Assessment, which also

applies to the Department's proposed rule.

Executive Order 12875 prohibits executive departments and agencies

from promulgating any regulation that is not required by statute and

that creates a mandate upon a state, local, or tribal government unless

certain conditions are met. The Access Board is required by statute to

issue minimum guidelines for the purposes of implementing titles II and

III of the ADA (42 USC 12204). The Department of Justice is required by

statute to promulgate regulations that implement title II of the ADA

and that are consistent with the minimum guidelines and requirements

issued by the Access Board (42 USC 12134). Because the Department of

Justice is required by statute to promulgate regulations that do not go

below the Access Board's minimum guidelines, and because this rule

adopts guidelines issued by the Access Board as also required by

statute, this rule is required by statute. Therefore, the special

conditions in Executive Order 12875 need not be met. However, the

Department will provide any comments submitted that suggest ways to

make compliance less burdensome or that would improve the effectiveness

of the title II regulation in achieving its objective.

List of Subjects

28 CFR Part 35

Administrative practice and procedure, Alcoholism, Blind, Buildings

and facilities, Civil rights, Drug abuse, Historic preservation, HIV/

AIDS, Individuals with disabilities, Intergovernmental relations,

Reporting and recordkeeping requirements, State and local governments.

28 CFR Part 36

Administrative practice and procedure, Alcoholism, Blind, Buildings

and facilities, Business and industry, Civil rights, Consumer

protection, Drug abuse, Historic preservation, HIV/AIDS, Individuals

with disabilities, Reporting and recordkeeping requirements,

Transportation.

28 CFR Part 37

Buildings and facilities, Civil rights, Individuals with

disabilities, Historic preservation, Transportation.

By the authority vested in me as Attorney General by 28 U.S.C. 509,

510, 5 U.S.C. 301, and sections 204 and 306 of the Americans with

Disabilities Act, Pub. L. 101-336, 42 U.S.C. 12134 and 12186, and for

the reasons set forth in the preamble, Chapter I of Title 28 of the

Code of Federal Regulations is proposed to be amended as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND

LOCAL GOVERNMENT SERVICES

1. The authority citation for 28 CFR part 35 is revised to read as

follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.

2. In Sec. 35.150, paragraph (a)(2) and the third sentence of

paragraph (b)(1) are revised to read as follows:

Sec. 35.150 Existing facilities.

(a) * * *

* * * * *

(2) Require a public entity to take any action that would threaten

or destroy the historic significance of an historic property, as

determined under the procedures set out in section 4.1.7 of appendix A

to part 37 of this chapter; or

* * * * *

(b) * * *

(1) * * * A public entity, in making alterations to existing

buildings, shall meet the accessibility requirements of Sec. 35.151.

The path of travel requirements of Sec. 35.153 shall not apply to

measures taken solely to comply with the program accessibility

requirements of this section. * * *

* * * * *

3. Section 35.151 is revised and Secs. 35.152 through 35.155 are

added to read as follows:

Sec. 35.151 New construction.

(a) Design and construction. Each facility or part of a facility

constructed by, on behalf of, or for the use of a public entity shall

be designed and constructed in such manner that the facility or part of

the facility is readily accessible to and usable by individuals with

disabilities, if the construction was commenced after January 26, 1992.

(b) Exception for structural impracticability. (1) Full compliance

with the requirements of this section is not required where a public

entity can demonstrate that it is structurally impracticable to meet

the requirements. Full compliance will be considered structurally

impracticable only in those rare circumstances when the unique

characteristics of terrain prevent the incorporation of accessibility

features.

(2) If full compliance with this section would be structurally

impracticable, compliance with this section is required to the extent

that it is not structurally impracticable. In that case, any portion of

the facility that can be made accessible shall be made accessible to

the extent that it is not structurally impracticable.

(3) If providing accessibility in conformance with this section to

individuals with certain disabilities (e.g., those who use wheelchairs)

would be structurally impracticable, accessibility shall nonetheless be

ensured to persons with other types of disabilities (e.g., those who

use crutches or who have sight, hearing, or mental impairments) in

accordance with this section.

Sec. 35.152 Alterations: General.

(a) General. (1) Each facility or part of a facility altered by, on

behalf of, or for the use of a public entity in a manner that affects

or could affect the usability of the facility or part of the facility

shall, to the maximum extent feasible, be altered in such manner that

the altered portion of the facility is readily accessible to and usable

by individuals with disabilities, if the alteration was commenced after

January 26, 1992.

(2) An alteration is deemed to have commenced after January 26,

1992, if the physical alteration of the property begins after that

date.

(b) Alteration. For the purposes of this part, an alteration is a

change to a facility that affects or could affect the usability of the

building or facility or any part thereof.

(1) Alterations include, but are not limited to, remodeling,

renovation, rehabilitation, reconstruction, historic restoration,

resurfacing, changes or rearrangement in structural parts or elements,

and changes or rearrangement in the plan configuration of walls and

full-height partitions. Normal maintenance, reroofing, painting or

wallpapering, asbestos removal, or changes to mechanical and electrical

systems are not alterations unless they affect the usability of the

building or facility.

(2) If existing elements, spaces, or common areas are altered, then

each such altered element, space, or area shall comply with the

applicable provisions of appendix A to part 37 of this chapter.

(c) To the maximum extent feasible. The phrase ``to the maximum

extent feasible,'' as used in this section, applies to the occasional

case where the nature of an existing facility makes it virtually

impossible to comply fully with applicable accessibility standards

through a planned alteration. In these circumstances, the alteration

shall provide the maximum physical accessibility feasible. Any altered

features of the facility that can be made accessible shall be made

accessible. If providing accessibility in conformance with this section

to individuals with certain disabilities (e.g., those who use

wheelchairs) would not be feasible, the facility shall be made

accessible to persons with other types of disabilities (e.g., those who

use crutches, those who have impaired vision or hearing, or those who

have other impairments).

Sec. 35.153 Alterations: Path of travel.

(a) General. An alteration that affects or could affect the

usability of or access to an area of a facility that contains a primary

function shall be made so as to ensure that, to the maximum extent

feasible, the path of travel to the altered area and the restrooms,

telephones, and drinking fountains serving the altered area, are

readily accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs, unless the cost and scope of

such alterations is disproportionate to the cost of the overall

alteration.

(b) Primary function. A ``primary function'' is a major activity

for which the facility is intended. Areas that contain a primary

function include, but are not limited to, the meeting rooms in a

conference center, as well as offices and other work areas in which the

activities of the public entity using the facility are carried out.

(1) Mechanical rooms, boiler rooms, supply storage rooms, employee

lounges or locker rooms, janitorial closets, entrances, and corridors

are not areas containing a primary function. Restrooms are not areas

containing a primary function, unless the provision of restrooms is the

principal purpose of the area, e.g., in highway rest stops.

(2) For the purposes of this section, alterations to windows,

hardware, controls, electrical outlets, and signage shall not be deemed

to be alterations that affect the usability of or access to an area

containing a primary function.

(c) Path of travel. (1) A ``path of travel'' includes a continuous,

unobstructed way of pedestrian passage by means of which the altered

area may be approached, entered, and exited, and which connects the

altered area with an exterior approach (including sidewalks, streets,

and parking areas), an entrance to the facility, and other parts of the

facility.

(2) An accessible path of travel may consist of walks and

sidewalks, curb ramps and other interior or exterior pedestrian ramps;

clear floor paths through lobbies, corridors, rooms, and other improved

areas; parking access aisles; elevators and lifts; or a combination of

these elements.

(3) For the purposes of this part, the term ``path of travel'' also

includes the restrooms, telephones, and drinking fountains serving the

altered area.

(d) Disproportionality. (1) Alterations made to provide an

accessible path of travel to the altered area will be deemed

disproportionate to the overall alteration when the cost exceeds 20% of

the cost of the alteration to the primary function area.

(2) Costs that may be counted as expenditures required to provide

an accessible path of travel may include:

(i) Costs associated with providing an accessible entrance and an

accessible route to the altered area, for example, the cost of widening

doorways or installing ramps;

(ii) Costs associated with making restrooms accessible, such as

installing grab bars, enlarging toilet stalls, insulating pipes, or

installing accessible faucet controls;

(iii) Costs associated with providing accessible telephones, such

as relocating the telephone to an accessible height, installing

amplification devices, or installing a telecommunications device for

deaf persons (TDD);

(iv) Costs associated with relocating an inaccessible drinking

fountain.

(e) Duty to provide accessible features in the event of

disproportionality. (1) When the cost of alterations necessary to make

the path of travel to the altered area fully accessible is

disproportionate to the cost of the overall alteration, the path of

travel shall be made accessible to the extent that it can be made

accessible without incurring disproportionate costs.

(2) In choosing which accessible elements to provide, priority

should be given to those elements that will provide the greatest

access, in the following order:

(i) An accessible entrance;

(ii) An accessible route to the altered area;

(iii) At least one accessible restroom for each sex or a single

unisex restroom;

(iv) Accessible telephones;

(v) Accessible drinking fountains; and

(vi) When possible, additional accessible elements such as parking,

storage, and alarms.

(f) Series of smaller alterations. (1) The obligation to provide an

accessible path of travel may not be evaded by performing a series of

small alterations to the area served by a single path of travel if

those alterations could have been performed as a single undertaking.

(2) (i) If an area containing a primary function has been altered

without providing an accessible path of travel to that area, and

subsequent alterations of that area, or a different area on the same

path of travel, are undertaken within three years of the original

alteration, the total cost of alterations to the primary function areas

on that path of travel during the preceding three-year period shall be

considered in determining whether the cost of making that path of

travel accessible is disproportionate.

(ii) Only alterations undertaken after the effective date of this

amendment shall be considered in determining if the cost of providing

an accessible path of travel is disproportionate to the overall cost of

the alterations.

Sec. 35.154 Alterations: Historic preservation.

(a) Alterations to buildings or facilities that are ``historic

properties'' as defined in Sec. 35.104 shall comply, to the maximum

extent feasible, with section 4.1.7 of appendix A to part 37 of this

chapter.

(b) If it is determined under the procedures set out in section

4.1.7 of appendix A to part 37 of this chapter that it is not feasible

to provide physical access to an historic property in a manner that

will not threaten or destroy the historic significance of the building

or facility, alternative methods of access shall be provided pursuant

to the requirements of Sec. 35.150.

Sec. 35.155 Standards for new construction and alterations.

Effective on [the effective date of the final rules] new

construction and alterations subject to this part shall comply with the

standards for accessible design in 28 CFR part 37, appendix A.

4. Section 35.172 is revised to read as follows:

Sec. 35.172 Investigations and compliance reviews.

(a) The designated agency shall investigate each complete complaint

for which it is responsible under Sec. 35.171.

(b) The designated agency may conduct compliance reviews of public

entities based on information indicating a possible failure to comply

with the nondiscrimination requirements of this part.

(c) Where appropriate, the designated agency shall attempt informal

resolution of any matter being investigated under this section, and, if

resolution is not achieved, issue to the public entity and the

complainant, if any, a Letter of Findings that shall include--

(1) Findings of fact and conclusions of law;

(2) A description of a remedy for each violation found; and

(3) Notice of the rights and procedures available under paragraph

(d) of this section and Secs. 35.173 and 35.174.

(d) At any time, the complainant may file a private suit pursuant

to section 203 of the Act, whether or not the designated agency finds a

violation.

(e) A public entity shall permit access by the designated agency

during normal business hours to books, records, accounts, and other

sources of information, and its facilities as may be pertinent to

ascertain compliance with this part. Whenever any information required

of a public entity is in the exclusive possession of any other agency,

institution, or person and that agency, institution, or person fails or

refuses to furnish that information, the public entity shall so certify

in its report and shall set forth the efforts that it has made to

obtain the information. Asserted considerations of privacy or

confidentiality may not operate to bar the designated agency from

evaluating or seeking to enforce compliance with this part. Information

of a confidential nature obtained in connection with compliance

evaluation or enforcement shall not be disclosed except where necessary

in formal enforcement proceedings or where otherwise required by law.

5. Section 35.174 is revised to read as follows:

Sec. 35.174 Enforcement.

(a) If a public entity declines to enter into voluntary compliance

negotiations or if negotiations are unsuccessful, the designated agency

shall refer the matter to the Attorney General with a recommendation

for appropriate action.

(b) If there appears to be a threatened failure to comply with this

part and if the threatened noncompliance cannot be corrected by

informal means, the designated agency may use any means authorized by

law to achieve compliance, including, but not limited to, referral to

the Department of Justice with a recommendation for appropriate action.

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC

ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

6. The authority citation for 28 CFR part 36 continues to read as

follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; (42 U.S.C. 12186).

7. Section 36.402(b)(2) is revised to read as follows:

Sec. 36.402 Alterations.

* * * * *

(b) * * *

(2) If existing elements, spaces, or common areas are altered, then

each such altered element, space, or area shall comply with the

applicable provisions of appendix A to part 37 of this chapter.

* * * * *

8. Section 36.405 is revised to read as follows:

Sec. 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 section 4.1.7 of appendix A to part 37 of this chapter.

(b) If it is determined under the procedures set out in section

4.1.7 of appendix A to part 37 of this chapter 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 facility, alternative methods

of access shall be provided pursuant to the requirements of subpart C

of this part.

9. Paragraphs (a) and (b) of Sec. 36.406 are revised to read as

follows:

Sec. 36.406 Standards for new construction and alterations.

(a) New construction and alterations subject to this part shall

comply with the standards for accessible designs published as appendix

A to part 37 of this chapter.

(b) The chart in the appendix to this section provides guidance to

the user in reading appendix A to part 37 of this chapter together with

subparts A through D of this part, when determining requirements for a

particular facility.

* * * * *

10. In the Appendix to Sec. 36.406, in the heading in the third

column of the table, ``ADAAG'' is revised to read ``ADA Standards''.

Appendix A to Part 36 [Removed]

Appendix B to Part 36 [Redesignated as Appendix A to Part 36]

11. Appendix A to Part 36 is removed and Appendix B to Part 36 is

redesignated as Appendix A to Part 36.

PART 37--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND

LOCAL GOVERNMENT SERVICES AND BY PUBLIC ACCOMMODATIONS AND IN

COMMERCIAL FACILITIES

12. Part 37 is added to read as follows:

Sec.

37.101 Accessibility Standards.

37.102-37.999 [Reserved]

Appendix A to Part 37--Standards for Accessible Design

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134,

12186.

Sec. 37.101 Accessibility Standards.

The standards for accessible design for purposes of the Americans

with Disabilities Act are set forth in Appendix A of this part.

Secs. 37.102-37.999 [Reserved]

Appendix A to Part 37--Standards for Accessible Design

[Note: the text of the Appendix, including the changes set out

in the Access Board's interim rule published elsewhere in this issue

of the Federal Register, is available from John Wodatch, Public

Access Section, Civil Rights Division, U.S. Department of Justice,

P.O. Box 66738, Washington, D.C. 20035-9998. Telephone (202) 307-

2227 (Voice) or (202) 514-0383 (TTY) (the Division's ADA Information

Line). These are not toll free numbers.]

Dated: June 5, 1994.

Janet Reno,

Attorney General.

[FR Doc. 94-14228 Filed 6-17-94; 8:45 am]

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