[Federal Register: June 20, 1994]
Part III
Department of Justice
Office of the Attorney General
28 CFR Part 35, et al.
Nondiscrimination on the Basis of Disability in the State and Local Government Services; Public Accommodations and Commercial Facilities; Accessibility Standards; Proposed Rule
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Parts 35, 36, and 37
[Order No. 1889-94]
Nondiscrimination on the Basis of Disability in State and Local Government Services; Public Accommodations and Commercial Facilities; Accessibility Standards
AGENCY: Department of Justice.
ACTION: Proposed rule.
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, (800) 514-0301 (Voice), (800) 514-0383 (TDD) (the Division's ADA Information Line).
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 (800) 514-0301 (Voice) or (800) 514-0383 (TDD). The rule is also available on electronic bulletin board at (202) 514-6193.
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 (800) 514-0301 (Voice) or (800) 514-0383 (TTY) (the Division's ADA Information Line).
Dated: June 5, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-14228 Filed 6-17-94; 8:45 am]
BILLING CODE 4410-01-P
last revised September 30, 2004