Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 34508-34557 [E8-12623]

Agencies

• Department of Justice

[Federal Register Volume 73, Number 117 (Tuesday, June 17, 2008)]
[Proposed Rules]
[Pages 34508-34557]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-12623]


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DEPARTMENT OF JUSTICE

28 CFR Part 36

[CRT Docket No. 106; AG Order No. 2968-2008]
RIN 1190-AA44


Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Justice (Department) is issuing this notice 
of proposed rulemaking (NPRM) in order to: Adopt enforceable 
accessibility standards under the Americans with Disabilities Act of 
1990 (ADA) that are ``consistent with the minimum guidelines and 
requirements issued by the Architectural and Transportation Barriers 
Compliance Board'' (Access Board); and perform periodic reviews of any 
rule judged to have a significant economic impact on a substantial 
number of small entities, and a regulatory assessment of the costs and 
benefits of any significant regulatory action as required by the 
Regulatory Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (SBREFA).
    In this NPRM, the Department proposes to adopt Parts I and III of 
the Americans With Disabilities Act and Architectural Barriers Act 
Accessibility Guidelines (2004 ADAAG), which were published by the 
Architectural and Transportation Barriers and Compliance Board (Access 
Board) on July 23, 2004. Prior to its adoption by the Department, the 
2004 ADAAG is effective only as guidance to the Department; it has no 
legal effect on the public until the Department issues a final rule 
adopting

[[Page 34509]]

the revised ADA Standards (proposed standards).
    Concurrently with the publication of this NPRM, the Department is 
publishing an NPRM to amend its title II regulation, which covers state 
and local government entities, in order to adopt the 2004 ADAAG as its 
proposed standards for title II entities, to make amendments to the 
title II regulation for consistency with title III, and to make 
amendments that reflect the collective experience of 16 years of 
enforcement of the ADA.

DATES: All comments must be received by August 18, 2008.

ADDRESSES: Submit electronic comments and other data to https://
www.regulations.gov. Address written comments concerning this NPRM to: 
ADA NPRM, P.O. Box 2846, Fairfax, VA 22031-0846. Overnight deliveries 
should be sent to the Disability Rights Section, Civil Rights Division, 
U.S. Department of Justice, located at 1425 New York Avenue, NW., Suite 
4039, Washington, DC 20005. All comments will be made available for 
public viewing online at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Janet L. Blizard, Deputy Chief, 
Disability Rights Section, Civil Rights Division, U.S. Department of 
Justice, at (202) 307-0663 (voice or TTY). This is not a toll-free 
number. Information may also be obtained from the Department's toll-
free ADA Information Line at (800) 514-0301 (voice) or (800) 514-0383 
(TTY).
    This rule is also available in an accessible format on the ADA Home 
Page at https://www.ada.gov. You may obtain copies of this rule in large 
print or on computer disk by calling the ADA Information Line listed 
above.

SUPPLEMENTARY INFORMATION:

Electronic Submission and Posting of Public Comments

    You may submit electronic comments to https://www.regulations.gov. 
When submitting comments electronically, you must include CRT Docket 
No. 106 in the subject box, and you must include your full name and 
address.
    Please note that all comments received are considered part of the 
public record and made available for public inspection online at http:/
/www.regulations.gov. Such information includes personal identifying 
information (such as your name, address, etc.) voluntarily submitted by 
the commenter.
    If you want to submit personal identifying information (such as 
your name, address, etc.) as part of your comment, but do not want it 
to be posted online, you must include the phrase ``PERSONAL IDENTIFYING 
INFORMATION'' in the first paragraph of your comment. You must also 
locate all the personal identifying information you do not want posted 
online in the first paragraph of your comment and identify information 
you want redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it posted online, you must include the 
phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of 
your comment. You must also prominently identify confidential business 
information to be redacted within the comment. If a comment has so much 
confidential business information that it cannot be effectively 
redacted, all or part of that comment may not be posted on https://
www.regulations.gov.
    Personal identifying information identified and located as set 
forth above will be placed in the agency's public docket file, but not 
posted online. Confidential business information identified and located 
as set forth above will not be placed in the public docket file. If you 
wish to inspect the agency's public docket file in person by 
appointment, please see the ``FOR FURTHER INFORMATION CONTACT'' 
paragraph.

Overview

    Throughout this NPRM, the current, legally enforceable ADA 
Standards will be referred to as the ``1991 Standards,'' 28 CFR part 
36, App. A, 56 FR 35544 (July 26, 1991), modified in part at 59 FR 2674 
(Jan. 18, 1994). The Access Board's 2004 revised guidelines will be 
referred to as the ``2004 ADAAG,'' 69 FR 44084 (July 23, 2004), as 
amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The 
revisions now proposed in the NPRM, based on the 2004 ADAAG, are 
referred to in the preamble as the ``proposed standards.''
    In performing the required, periodic review of its existing 
regulation, the Department has reviewed the title III regulation 
section by section, and, as a result, proposes several clarifications 
and amendments in this NPRM. The Department's initial, formal benefit-
cost analysis can be found at Appendix B. See E.O. 12866, 58 FR 51735 
(Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), 
and E.O. 13422, 72 FR 2703 (Jan. 18, 2007); 5 U.S.C. 601, 603, and 
610(a); and OMB Circular A-4, https://www.whitehouse.gov/omb/circulars/
a004/a-4.pdf. The NPRM was submitted to the Office of Management and 
Budget (OMB), Office of Information and Regulatory Affairs, for review 
and approval prior to publication in the Federal Register. It has also 
been reviewed by the Small Business Administration's Office of Advocacy 
pursuant to Executive Order 13272, 67 FR 53461 (Aug. 13, 2002).

Purpose

    On July 26, 1990, President George H.W. Bush signed into law the 
Americans With Disabilities Act, 42 U.S.C. 12101 et seq., a 
comprehensive civil rights law prohibiting discrimination on the basis 
of disability. At the beginning of his administration, President George 
W. Bush underscored the nation's commitment to ensuring the rights of 
over fifty million individuals with disabilities nationwide by 
announcing the New Freedom Initiative (available at https://
www.whitehouse.gov/infocus/newfreedom). The Access Board's publication 
of the 2004 ADAAG is the culmination of a long-term effort to 
facilitate ADA compliance and enforcement by eliminating, to the extent 
possible, inconsistencies among federal accessibility requirements and 
between federal accessibility requirements and state and local building 
codes. In support of this effort, the Department is announcing its 
intention to adopt standards consistent with Parts I and III of the 
2004 ADAAG as the ADA Standards for Accessible Design. To facilitate 
this process, the Department is seeking public comment on the issues 
discussed in this notice.

The ADA and Department of Justice Regulations

    The ADA broadly protects the rights of individuals with 
disabilities in employment, access to state and local government 
services, places of public accommodation, transportation, and other 
important areas of American life and, in addition, requires newly 
designed and constructed or altered state and local government 
facilities, public accommodations, and commercial facilities to be 
readily accessible to and usable by individuals with disabilities. 42 
U.S.C. 12101 et seq. Under the ADA, the Department is responsible for 
issuing regulations to implement title II and title III of the Act, 
except to the extent that transportation providers subject to title II 
or title III are regulated by the Department of Transportation. Id. at 
12134.
    The Department also is proposing amendments to its title II 
regulation, which prohibits discrimination on the basis of disability 
in state and local government services, concurrently with the 
publication of this NPRM, in this issue of the Federal Register.

[[Page 34510]]

    Title III prohibits discrimination on the basis of disability in 
the activities of places of public accommodation (businesses that are 
generally open to the public and that fall into one of twelve 
categories listed in the ADA, such as restaurants, movie theaters, 
schools, day care facilities, recreational facilities, and doctors' 
offices) and requires newly constructed or altered places of public 
accommodation--as well as commercial facilities (privately owned, 
nonresidential facilities like factories, warehouses, or office 
buildings)--to comply with the ADA Standards. 42 U.S.C. 12181-89.
    On July 26, 1991, the Department issued its final rules 
implementing title II and title III, which are codified at 28 CFR part 
35 (title II) and part 36 (title III). Appendix A of the title III 
regulation, at 28 CFR part 36, contains the 1991 Standards, which were 
based upon the version of ADAAG published by the Access Board on the 
same date. Under the Department's regulation implementing title III, 
places of public accommodation and commercial facilities are currently 
required to comply with the 1991 Standards with respect to newly 
constructed or altered facilities.

Relationship to Other Laws

    The Department of Justice regulation implementing title III, 28 CFR 
36.103, provides:

    (a) Rule of interpretation. Except as otherwise provided in this 
part, this part shall not be construed to apply a lesser standard 
than the standards applied under title V of the Rehabilitation Act 
of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal 
agencies pursuant to that title.
    (b) Section 504. This part does not affect the obligations of a 
recipient of federal financial assistance to comply with the 
requirements of section 504 of the Rehabilitation Act of 1973, 29 
U.S.C. 794, and regulations issued by federal agencies implementing 
section 504.
    (c) Other laws. This part does not invalidate or limit the 
remedies, rights, and procedures of any other federal, state, or 
local laws (including state common law) that provide greater or 
equal protection for the rights of individuals with disabilities or 
individuals associated with them.

    Nothing in this proposed rule will alter this relationship. The 
Department recognizes that public accommodations subject to title III 
of the ADA may also be subject to title I of the ADA, which prohibits 
discrimination on the basis of disability in employment; section 504, 
which prohibits discrimination on the basis of disability in the 
programs and activities of recipients of federal financial assistance; 
and other federal statutes such as the Air Carrier Access Act, 49 
U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq. 
Compliance with the Department's ADA regulations does not necessarily 
ensure compliance with other federal statutes.
    Public accommodations that are subject both to the Department's 
regulations and to regulations published by other federal agencies must 
ensure that they comply with the requirements of both regulations. If 
there is a direct conflict between the regulations, the regulation that 
provides greater accessibility will prevail. When different statutes 
apply to entities that routinely interact, each entity must follow the 
regulation that specifically applies to it. For example, a quick 
service restaurant in an airport is a public accommodation subject to 
title III. It regularly serves the passengers of air carriers subject 
to the Air Carrier Access Act (ACAA). The restaurant is subject to the 
title III requirements, not to the ACAA requirements. Conversely, the 
airline is required to comply with the ACAA, not with the ADA.

The Roles of the Access Board and the Department of Justice

    The Access Board was established by section 502 of the 
Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of 
thirteen public members appointed by the President, of whom the 
majority must be individuals with disabilities, and the heads of twelve 
federal departments and agencies specified by statute, including the 
heads of the Department of Justice and the Department of 
Transportation. Originally, the Access Board was established to develop 
and maintain accessibility guidelines for federally funded facilities 
under the Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et 
seq. The passage of the ADA expanded the Access Board's 
responsibilities. The ADA requires the Access Board to ``issue minimum 
guidelines that shall supplement the existing Minimum Guidelines and 
Requirements for Accessible Design for purposes of subchapters II and 
III of this chapter * * * to ensure that buildings, facilities, rail 
passenger cars, and vehicles are accessible, in terms of architecture 
and design, transportation, and communication, to individuals with 
disabilities.'' 42 U.S.C. 12204. The ADA requires the Department to 
issue regulations that include enforceable accessibility standards 
applicable to facilities subject to title II or title III that are 
consistent with the minimum guidelines issued by the Access Board. Id. 
at 12134, 12186.
    The Department was extensively involved in the development of the 
2004 ADAAG. As a federal member of the Access Board, the Attorney 
General's representative voted to approve the revised guidelines. 
Although the enforceable standards issued by the Department under title 
II and title III must be consistent with the minimum guidelines 
published by the Access Board, it is the sole responsibility of the 
Attorney General to promulgate standards and to interpret and enforce 
those standards.
    The ADA also requires the Department to develop regulations with 
respect to existing facilities subject to title II (Subtitle A) and 
title III. How and to what extent the Access Board's guidelines are 
used with respect to the barrier removal requirement applicable to 
existing facilities under title III of the ADA and to the provision of 
program accessibility under title II of the ADA are solely within the 
discretion of the Department.

The Revised Guidelines (2004 ADAAG)

    Part I of the 2004 ADAAG provides scoping requirements for 
facilities subject to the ADA; scoping is a term used in the 2004 ADAAG 
to describe requirements (set out in Parts I and II) that prescribe 
what elements and spaces--and, in some cases, how many--must comply 
with the technical specifications. Part II provides scoping (which is 
defined in the preamble of title 2) requirements for facilities subject 
to the ABA (i.e., facilities designed, built, altered, or leased with 
federal funds). Part III provides uniform technical specifications for 
facilities subject to either statute. This revised format is designed 
to eliminate unintended conflicts between the two federal accessibility 
standards and to minimize conflicts between the federal regulations and 
the model codes that form the basis of many state and local building 
codes.
    The 2004 ADAAG is the culmination of a ten-year effort to improve 
ADA compliance and enforcement. In 1994, the Access Board began the 
process of updating the original ADAAG by establishing an advisory 
committee composed of members of the design and construction industry, 
the building code community, state and local government entities, and 
people with disabilities. In 1999, based largely on the report and 
recommendations of the advisory committee,\1\ the Access Board issued a 
proposed rule to update and revise its ADA and ABA Accessibility 
Guidelines.

[[Page 34511]]

See 64 FR 62248 (Nov. 16, 1999). In response to its proposed rule, the 
Access Board received more than 2,500 comments from individuals with 
disabilities, affected industries, state and local governments, and 
others. The Access Board provided further opportunity for participation 
by holding public hearings throughout the nation. The Access Board 
worked vigorously from the beginning to harmonize the ADA and ABA 
Accessibility Guidelines with industry standards and model codes. The 
Access Board released an interim draft of its guidelines to the public 
on April 2, 2002, 67 FR 15509, in order to provide an opportunity for 
entities with model codes to consider amendments that would promote 
further harmonization. By the date of its final publication on July 23, 
2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary 
public participation and review.
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    \1\ After a two-year process of collaboration with the access 
Board, the Advisory Committee issued its Recommendations for a New 
ADAAG in September 1996, available at https://www.access-board.gov/
pubs.htm.
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    In addition, the Access Board amended the ADAAG four times since 
1998. In 1998, it added specific guidelines on state and local 
government facilities, 63 FR 2000 (Jan. 13, 1998), and building 
elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). 
Subsequently, the Access Board added specific guidelines on play areas, 
65 FR 62498 (Oct. 18, 2000), and on recreational facilities 67 FR 56352 
(Sept. 3, 2002).
    These amendments to the ADAAG have not previously been adopted by 
the Department as ADA Standards. Through this NPRM, the Department is 
announcing its intention to publish a proposed rule that will adopt 
revised ADA Standards consistent with the 2004 ADAAG, including all of 
the amendments to the ADAAG since 1998.

The Advance Notice of Proposed Rulemaking

    The Department published an advance notice of proposed rulemaking 
(ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To 
begin the process of adopting the Access Board's 2004 ADAAG by 
soliciting public input on issues relating to the potential application 
of the Access Board's revisions once the Department adopts them as 
revised standards; and (2) to request background information that would 
assist the Department in preparing a regulatory analysis under the 
guidance provided in OMB Circular A-4, available at https://
www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D (Analytical 
Approaches) and E (Identifying and Measuring Benefits and Costs). While 
underscoring that the Department, as a member of the Access Board, had 
already reviewed comments provided to the Access Board during its 
development of the 2004 ADAAG, the Department specifically requested 
public comment on the potential application of the 2004 ADAAG to 
existing facilities. The extent to which the 2004 ADAAG is used with 
respect to the barrier removal requirement applicable to existing 
facilities under title III (like the program access requirement in 
title II) is solely within the discretion of the Department. The ANPRM 
dealt with the Department's responsibilities under both title II and 
title III.
    Public response to the ANPRM was extraordinary. The Department 
extended the comment deadline by four months at the public's request. 
70 FR 2992 (Jan. 19, 2005). By the end of the extended comment period, 
the Department had received more than 900 comments covering a broad 
range of issues. Most of the comments responded to questions 
specifically posed by the Department, including issues involving the 
application of the 2004 ADAAG once the Department adopts it and cost 
information to assist the Department in its regulatory assessment. The 
public provided information on how to assess the cost of elements in 
small facilities, office buildings, hotels and motels, assembly areas, 
hospitals and long-term care facilities, residential units, 
recreational facilities, and play areas. Comments addressed the 
effective date of the proposed standards, the triggering event by which 
the effective date is measured in new construction, and variations on a 
safe harbor that would excuse elements built in compliance with the 
1991 Standards from compliance with the proposed standards. Comments 
responded to questions regarding elements scoped for the ``first time'' 
in the 2004 ADAAG, including detention and correctional facilities, 
recreational facilities, and play areas, as well as proposed additions 
to the Department's regulation for items such as free-standing 
equipment. Comments also dealt with specific requirements in the 2004 
ADAAG.
    Many commenters requested clarification of or changes to the 
Department's title III regulation. Commenters observed that now, more 
than seventeen years after enactment of the ADA, as facilities are 
becoming physically accessible to individuals with disabilities, the 
Department needs to focus on second generation issues that ensure that 
individuals with disabilities can actually gain access to and use the 
accessible elements. So, for example, commenters asked the Department 
to focus on such issues as ticketing in assembly areas and reservations 
for hotel rooms, rental cars, and boat slips. The public asked about 
captioning and the division of responsibility between the Department 
and the Access Board for fixed and non-fixed (or free-standing) 
equipment. Finally, commenters asked for clarification on some issues 
in the existing regulations, such as title III's requirements regarding 
service animals.
    All of the issues raised in the public comments are addressed, in 
turn, in this NPRM or in the NPRM for title II. Issues involving title 
II of the ADA, such as the exhaustion of administrative remedies under 
the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e et seq., are 
addressed in the Department's NPRM for title II, in this issue of the 
Federal Register, published concurrently with this NPRM.

Background (SBREFA, Regulatory Flexibility Act, and Executive Order) 
Reviews

    The Department must provide two types of assessments as part of its 
NPRM: an analysis of the costs and benefits of adopting the 2004 ADAAG 
as its proposed standards, and a periodic review of its existing 
regulations to consider their impact on small entities, including small 
businesses, small nonprofit organizations, and small governmental 
jurisdictions. E.O. 12866, 58 FR 51735 (Sept. 30, 1993), as amended by 
E.O. 13258, 67 FR 9385 (Feb. 26, 2002) and E.O. 13422, 72 FR 2763 (Jan. 
18, 2007); Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 603, as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA), 5 U.S.C. 610(a); OMB Circular A-4, https://
www.whitehouse.gov/omb/circulars/a004/a-4.pdf; and E.O. 13272, 67 FR 
53461 (Aug. 13, 2002).
    The Department leaves open the possibility that, as a result of the 
receipt of comments on an issue raised by the 2004 ADAAG, or if the 
Department's Regulatory Impact Analysis reveals that the costs of 
making a particular feature or facility accessible are disproportionate 
to the benefits to persons with disabilities, the Attorney General, as 
a member of the Access Board, may return the issue to the Access Board 
for further consideration of the particular feature or facility. In 
such a case, the Department would delay adoption of the accessibility 
requirement for the particular feature or facility in question in its 
final rule and await Access Board action before moving to consider any 
final action.

[[Page 34512]]

    Regulatory Impact Analysis. An initial regulatory impact analysis 
of the costs and benefits of a proposed rule is required by Executive 
Order 12866 (as amended by Executive Order 13258 and Executive Order 
13422). A full benefit-cost analysis is required of any regulatory 
action that is deemed to be significant--that is, a regulation that 
will have an annual effect of $100 million or more on the economy. See 
OMB Circular A-4; Regulatory Flexibility Act of 1980, 5 U.S.C. 601, 
603, as amended by SBREFA, 5 U.S.C. 610(a).
    Early in the rulemaking process, the Department concluded that the 
economic impact of its adoption of the 2004 ADAAG as proposed standards 
for title II and title III was likely to exceed the threshold for 
significant regulatory actions of $100 million. The Department has 
completed its initial regulatory impact analysis measuring the 
incremental benefits and costs of the proposed standards; the initial 
regulatory impact analysis is addressed at length with responses to 
public comments from the ANPRM, in Appendix B.
    The public may notice differences between the Department's 
regulatory impact analysis and the Access Board's regulatory assessment 
of the 2004 ADAAG. The differences in framework and approach result 
from the differing postures and responsibilities of the Department and 
the Access Board. First, the breadth of the proposed changes assessed 
in Appendix A of this NPRM is greater than in the Access Board's 
assessments related to the 2004 ADAAG. Unlike the Access Board, the 
Department must examine the effect of the proposed standards not only 
on newly constructed or altered facilities, but also on existing 
facilities. Second, whereas the Access Board issued separate rules for 
many of the differences between the 1991 Standards and the 2004 ADAAG 
(e.g., play areas and recreational facilities), the Department is 
proposing to adopt several years of revisions in a single rulemaking.
    According to the Department's initial Regulatory Impact Analysis 
(``RIA''), it is estimated that the incremental cost of the proposed 
requirements for each of the following eight existing elements will 
exceed monetized benefits by more than $100 million when using the 1991 
Standards as the comparative baseline: Side reach; water closet 
clearances in single-user toilet rooms with in-swinging doors; stairs; 
elevators; location of accessible routes to stages; accessible attorney 
areas and witness stands; assistive listening systems; and accessible 
teeing grounds, putting greens, and weather shelters at golf courses. 
However, this baseline figure does not take into account the fact that, 
since 1991, various model codes and consensus standards--such as the 
model International Building Codes (``IBC'') published by the 
International Codes Council and the consensus accessibility standards 
developed by the American National Standards Institute (``ANSI'')--have 
been adopted by a majority of states (in whole or in part) and that 
these codes have provisions mirroring the substance of the Department's 
proposed regulations. Indeed, such regulatory overlap is intentional 
since harmonization among federal accessibility standards, state and 
local building codes, and model codes, is one of the goals of the 
Department's rulemaking efforts.
    Even though the 1991 Standards are an appropriate baseline to 
compare the new requirements against, since they represent the current 
set of uniform federal regulations governing accessibility, in practice 
it is likely that many public and private facilities across the country 
are already being built or altered in compliance with the Department's 
proposed standards with respect to these elements. Because the model 
codes are voluntary, public entities often modify or carve out 
particular standards when adopting them into their laws, and even when 
the standards are the same, local officials often interpret them 
differently. The mere fact that a state or local government has adopted 
a version of the IBC does not necessarily mean that the facilities 
within that jurisdiction are legally subject to its accessibility 
provisions. Because of these complications, and the inherent difficulty 
of determining which baseline is the most appropriate for each 
provision, the RIA accompanying this rulemaking compares the costs and 
benefits of the proposed requirements to several alternative baselines, 
which reflect various versions of existing building codes. In addition, 
since the Department is soliciting comment on these eight particular 
provisions with high net costs, the Department believes it is useful to 
further discuss the potential impact of alternative baselines on these 
particular provisions.
    For example, the Department's proposed standards for existing 
stairs and elevators have identical counterparts in one or more IBC 
versions (2000, 2003, or 2006). Please note, however, that the IBC 2006 
version bases a number of its provisions on guidelines in the 2004 
ADAAG. These IBC versions, in turn, have been adopted collectively by 
forty-six (46) states and the District of Columbia on a statewide 
basis. In the four (4) remaining states (Colorado, Delaware, Illinois, 
and Mississippi), while IBC adoption is left to the discretion of local 
jurisdictions, the vast majority of these local jurisdictions have 
elected to adopt IBC as their local code. Thus, given that nearly all 
jurisdictions in the country currently enforce a version of the IBC as 
their building code, and to the extent that the IBC building codes may 
be settled in this area and would not be further modified to be 
consistent if they differ from the final version of these regulations, 
the incremental costs and benefits attributable to the Department's 
proposed regulations governing alterations to existing stairs and 
elevators may be less significant than the RIA suggests over the life 
of the regulation.
    In a similar vein, consideration of an alternate IBC/ANSI baseline 
would also likely lower the incremental costs and benefits for five 
other proposed standards (side reach; water closet clearances in 
single-user toilet rooms with in-swinging doors; location of accessible 
routes to stages; accessible attorney areas and witness stands; and 
assistive listening systems), albeit to a lesser extent. Each of these 
proposed standards has a counterpart in either Chapter 11 of one or 
more versions of the IBC, ANSI A117.1, or a functionally equivalent 
state accessibility code. While IBC Chapter 11 and ANSI A117.1 have yet 
not been as widely adopted as some other IBC chapters, the RIA 
nonetheless still estimates that between 15% and 35% of facilities 
nationwide are already covered by IBC/A117.1 provisions that mirror 
these five proposed standards. It is thus expected that the incremental 
costs and benefits for these proposed standards may also be lower than 
the costs and benefits relative to the 1991 Standards baseline.
    Question 1: The Department believes it would be useful to solicit 
input from the public to inform us on the anticipated costs or benefits 
for certain requirements. The Department therefore invites comment as 
to what the actual costs and benefits would be for these eight existing 
elements, in particular as applied to alterations, in compliance with 
the proposed regulations (side reach, water closet clearances in 
single-user toilet rooms with in-swinging doors, stairs, elevators, 
location of accessible routes to stages, accessible attorney areas and 
witness stands, assistive listening systems, and accessible teeing 
grounds, putting greens, and weather shelters at golf courses), as well 
as additional practical benefits from these

[[Page 34513]]

requirements, which are often difficult to adequately monetize.
    The Department does not have statutory authority to modify the 2004 
ADAAG; instead, the ADA requires the Attorney General to issue 
regulations implementing the ADA that are ``consistent with'' the ADA 
Accessibility Guidelines issued by the Access Board. See 42 U.S.C. 
12134(c), 12186(c). As noted above in other parts of this preamble, the 
Department leaves open the possibility of seeking further consideration 
by the Access Board of particular issues based on disproportionate 
costs compared to benefits and public comments. The Access Board did 
not have the benefit of our RIA or public comment on our RIA as it 
pertains to the 2004 ADAAG.
    Question 2: The Department would welcome comment on whether any of 
the proposed standards for these eight areas (side reach, water closet 
clearances in single-user toilet rooms with in-swinging doors, stairs, 
elevators, location of accessible routes to stages, accessible attorney 
areas and witness stands, assistive listening systems, and accessible 
teeing grounds, putting greens, and weather shelters at golf courses) 
should be raised with the Access Board for further consideration, in 
particular as applied to alterations.
    Stages. The proposed requirement to provide direct access to stages 
represents an effort to ensure that individuals with disabilities are 
able to participate in programs in an integrated setting. Under the 
current 1991 Standards, a compliant accessible route connecting seating 
locations to performing areas is permitted to go outside the assembly 
area and make use of an indirect interior accessible route to access 
the stage area. As a result, even when other audience members are able 
to access a stage directly via stairs in order to participate in 
ceremonies, skits, or other interactive on-stage events, persons with 
mobility disabilities may be required to use an inconvenient indirect 
entrance to the stage. As graduates or award recipients, they may be 
required to part company with their peers, to make their way to the 
stage alone, and to make a conspicuous entrance. To address this 
situation, the proposed requirement mandates that, when a direct 
circulation path (for audience members) connects the seating area to a 
stage, the accessible route to the stage must also be direct.
    The Department has generally determined that the overall costs for 
this requirement are relatively high in the alterations context, due to 
the expense of having to provide a lift or ramp to access the stage 
area directly, regardless of which baseline is used for the analysis. 
The Department, however, has had difficulty in estimating the real 
costs of this requirement because of a lack of information about 
whether colleges, elementary and secondary schools, and entertainment 
venues now routinely provide such access when they are altering 
existing auditoriums or how frequently such alterations occur. Also, 
the Department currently lacks sufficient data or other sources with 
which to quantify the benefits that accrue to students and other 
persons with disabilities who, as a result of direct access to stages, 
would be able to participate fully and equally in graduation exercises 
and other events.
    Question 3: The Department would welcome information from operators 
of auditoriums on the likelihood that their auditoriums will be altered 
in the next fifteen years, and, if so, whether such alterations are 
likely to include accessible and direct access to stages. In addition, 
the Department would like specific information on whether, because of 
local law or policy, auditorium operators are already providing a 
direct accessible route to their stages. (The Department is also 
interested in whether having to provide a direct access to the stage 
would encourage operators of auditoriums to postpone or cancel the 
alteration of their facilities.) The Department also seeks information 
on possible means of quantifying the benefits that accrue to persons 
with disabilities from this proposed requirement or on its importance 
to them. To the extent that such information cannot be quantified, the 
Department welcomes examples of personal or anecdotal experience that 
illustrate the value of this requirement.
    The Department's RIA also estimates significant costs, regardless 
of the baseline used, for the proposed requirement that court 
facilities must provide an accessible route to a witness stand or 
attorney area and clear floor space to accommodate a wheelchair. These 
costs arise both in the new construction and alteration contexts. If 
the witness stand is raised, then either a ramp or lift must be 
provided to ensure access to the witness stand. While the RIA 
quantifies the benefits for this proposed requirement (as it does for 
all of the proposed requirements) primarily in terms of time savings, 
the Department fully appreciates that such a methodology does not 
capture the intangible benefits that accrue when persons with mobility 
disabilities are able to participate in the court process as 
conveniently as any other witness or party. Without access to the 
witness stand, for example, a wheelchair user, or a witness who uses 
other mobility devices such as a walker or crutches, may have to sit at 
floor level. If the witness with a mobility disability testifies from a 
floor level position, the witness could be placed at a disadvantage in 
communicating with the judge and jury who may no longer be able to see 
the witness as easily, or, potentially at all. This may create a 
reciprocal difficulty for the judge and jurors who lose the sightline 
normally provided by the raised witness stand that enables them to see 
and hear the witness in order to evaluate his or her demeanor and 
credibility--difficulty that redounds to the detriment of litigants 
themselves and ultimately our system of justice.
    Question 4: The Department welcomes comment on how to measure or 
quantify the intangible benefits that would accrue from accessible 
witness stands. We particularly invite anecdotal accounts of the 
courtroom experiences of individuals with disabilities who have 
encountered inaccessible witness stands, as well as the experiences of 
state and local governments in making witness stands accessible, either 
in the new construction or alteration context.
    Under the 1991 Standards, Assistive Listening Systems (``ALS'') are 
required in courtrooms and in other settings where audible 
communication is integral to the use of the space and audio 
amplification systems are provided for the general audience. However, 
these Standards do not set forth technical specifications for such 
systems. Since 1991, advancements in ALS and the advent of digital 
technologies have made these systems more amenable to uniform technical 
specifications. In keeping with these technological advancements, the 
revised requirements create a technical standard that, among other 
things, ensures that a certain percentage of required ALS have hearing-
aid compatible receivers. Requiring hearing-aid compatible ALS enables 
persons who are hard of hearing to hear a speech, a play, a movie, or 
to follow the content of a trial. Without an effective ALS, people with 
hearing loss are effectively excluded from participation because they 
are unable to hear or understand the audible portion of the 
presentation.
    From an economic perspective, the cost of a single hearing-aid 
compliant ALS is not high--about $500 more than a non-compliant 
system--and compliant equipment is readily available on the retail 
market. As estimated in the RIA, the high overall costs for the revised 
technical requirements for ALS are instead driven by the assumption 
that entities with large assembly areas (such

[[Page 34514]]

as universities, stadiums, and auditoriums) will be required to 
purchase a relatively large number of compliant systems. On the other 
hand, the overall scoping for ALS has been reduced in the Department's 
proposed requirement, thus mitigating the cost to covered entities. The 
proposed revision to the technical requirement merely specifies that 
(25% or at least 2) of the required ALS receivers must be hearing-aid 
compatible. The RIA estimates that a significant part of the cost of 
this requirement will come from the replacement of individual ALS 
receivers and system maintenance.
    Question 5: The Department seeks information from arena and 
assembly area administrators on their experiences in managing ALS. In 
order to evaluate the accuracy of the assumptions in the RIA relating 
to ALS costs, the Department welcomes particular information on the 
life expectancy of ALS equipment and the cost of ongoing maintenance.
    The Department's proposed requirements mandate an accessible 
(pedestrian) route that connects all accessible elements within the 
boundary of the golf course and facility, including teeing grounds, 
putting greens, and weather shelters. Requiring access to necessary 
features of a golf course ensures that persons with mobility 
disabilities may fully and equally participate in a recreational 
activity.
    From an economic perspective, the Department's RIA assumes that 
virtually every tee and putting green on an existing course will need 
to be regraded in order to provide compliant accessible (pedestrian) 
routes to these features. However, the Department's proposal also 
excuses compliance with the requirement for an accessible (pedestrian) 
route so long as a ``golf car passage'' (i.e., the path typically used 
by golf cars) is otherwise provided to the teeing ground, putting 
green, or other accessible element on a course. Because it is likely 
that most public and private golf courses in the United States already 
provide golf passages to most or all holes, the actual costs of this 
requirement for owners and operators of existing golf courses should be 
reduced with little to no practical loss in accessibility.
    Question 6: The Department seeks information from the owners and 
operators of golf courses, both public and private, on the extent to 
which their courses already have golf car passages to teeing grounds, 
putting greens, and weather shelters, and, if so, whether they intend 
to avail themselves of the proposed exception.
    Analysis of impact on small entities. The second type of analysis 
that the Department has undertaken is a review of its existing 
regulations for title II and title III in order to consider the impact 
of those regulations on small entities. The review requires agencies to 
consider five factors: (1) The continued need for the rule; (2) the 
nature of complaints or comments received concerning the rule from the 
public; (3) the complexity of the rule; (4) the extent to which the 
rule overlaps, duplicates, or conflicts with other federal rules, and, 
to the extent feasible, with state and local governmental rules; and 
(5) the length of time since the rule has been evaluated or the degree 
to which technology, economic conditions, or other factors have changed 
in the area affected by the rule. 5 U.S.C. 610(b). Based on these 
factors, the agency should determine whether to continue the rule 
without change, or to amend or rescind the rule to minimize any 
significant economic impact of the rule on a substantial number of 
small entities. Id. at 610(a).
    In performing this review, the Department has gone through its 
regulation section by section, and, as a result, proposes several 
clarifications and amendments in this NPRM. Amendments to its title II 
regulation are proposed in the NPRM for title II published concurrently 
with this rule. The proposals reflect the Department's analysis and 
review of complaints or comments from the public as well as changes in 
technology. Many of the proposals aim to clarify and simplify the 
obligations of covered entities. As discussed in greater detail above, 
a significant goal in the development of the 2004 ADAAG was to 
eliminate duplication or overlap in federal accessibility guidelines as 
well as to harmonize the federal guidelines with model codes. The 
Department has also worked to create harmony where appropriate between 
the requirements of titles II and III. Finally, while the regulation is 
required by statute and there is a continued need for it as a whole, 
the Department proposes several modifications that are intended to 
reduce its effects on small entities.

Organization of This NPRM

    The subsequent sections of this NPRM deal with the Department's 
response to comments and its proposals for changes to its current 
regulation that derive from the required, periodic review that it 
performed. The proposed standards and the Department's response to 
comments regarding the 2004 ADAAG are contained in Appendix A to the 
NPRM. Appendix B to the NPRM contains the Department's initial, formal 
benefit-cost analysis.
    The section of the NPRM entitled, ``General Issues,'' briefly 
introduces topics that are noteworthy because they are new to the title 
III regulation or have been the subject of attention or comment. The 
topics introduced in the general issues section include: safe harbor 
and other proposed limitations on barrier removal, service animals, 
equipment, wheelchairs and other power-driven mobility devices, 
auxiliary aids and services (including captioning and video 
interpreting services), and certification of state and local building 
codes.
    Following the ``General Issues'' section, there is a section 
entitled, ``Section-By-Section Analysis and Response to Comments.'' 
This section provides a detailed discussion of the proposed changes to 
the title III regulation. The section-by-section analysis follows the 
order of the current regulation, except that regulatory sections that 
remain unchanged are not indicated. The discussion within each section 
explains the proposals and the reasoning behind them, as well as the 
Department's response to related public comments. Subject areas that 
deal with more than one section of the regulation include references to 
the related sections, where appropriate.
    Both the ``General Issues'' section and the ``Section-By-Section 
Analysis'' include specific questions to which the Department requests 
public response. These questions are numbered and italicized so that 
they are easier for readers to locate and reference. The Department 
emphasizes, however, that the public may comment on any aspect of this 
NPRM and is not required to respond solely to questions specifically 
posed by the Department.
    The Department's proposed changes to the actual regulatory text of 
title III, that follow the section-by-section analysis are entitled, 
``Part 36: Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities.''

General Issues

    This section briefly introduces topics that are noteworthy because 
they are new to the title III regulation or have been the subject of 
considerable attention or comment. Each topic is discussed subsequently 
in the section-by-section analysis.
    Safe harbor and other proposed limitations on barrier removal. One 
of the most important issues that the Department must address is the 
effect that supplemental or changed ADA Standards will have on the 
continuing

[[Page 34515]]

obligation of public accommodations to remove architectural, 
transportation, and communication barriers in existing facilities to 
the extent that it is readily achievable to do so. This issue was not 
addressed in the 2004 ADAAG because it was outside the scope of the 
Access Board's authority under the ADA. Responsibility for implementing 
title III's requirement that public accommodations eliminate existing 
architectural barriers where it is readily achievable to do so rests 
solely with the Department.
    The Department's current regulation implementing title III of the 
ADA establishes the requirements for barrier removal by public 
accommodations. 28 CFR 36.304. Under this requirement, the Department 
uses the 1991 Standards as a guide to identify what constitutes an 
architectural barrier, as well as the specifications that covered 
entities must follow in making architectural changes to the extent that 
it is readily achievable. 28 CFR part 36, App. B. Once adopted, 
therefore, the 2004 ADAAG will present a new reference point for title 
III's requirement to remove architectural barriers in existing places 
of public accommodation. The Department is concerned that the 
incremental changes in the 2004 ADAAG may place unnecessary cost 
burdens on businesses that have already removed barriers by complying 
with the 1991 Standards in their existing facilities.
    The Department seeks to strike an appropriate balance between 
ensuring that people with disabilities are provided access to buildings 
and facilities and potential financial burdens on existing places of 
public accommodation under their continuing obligation for barrier 
removal. Such a balance would not impose unnecessary financial burdens 
on existing places of public accommodation.
    The Department's ANPRM raised several options that might reduce 
such financial burdens. One approach, described in the ANPRM as Option 
I, is to establish a safe harbor with regard to elements in existing 
facilities that comply with the scoping and technical provisions in the 
1991 Standards. Specifically, the Department would deem that public 
accommodations have met their obligation for barrier removal with 
respect to any element in an existing facility if that element complies 
with the scoping and technical requirements in the 1991 Standards. 
Another possible approach--Option II in the ANPRM--is to reduce the 
scoping requirements for some of the supplemental or changed 
requirements as they apply to existing facilities (e.g., play areas and 
recreational facilities). Option III in the ANPRM proposed the 
exemption of certain elements in the proposed standards; under this 
option, the Department would determine that certain supplemental 
requirements are inappropriate for barrier removal. After reviewing the 
public comments on the ANPRM, the Department has decided to propose a 
combination of Options I and II. The specific proposals are addressed 
in the discussion of barrier removal in the section-by-section analysis 
of Sec.  36.304 below.
    The Department is not proposing to adopt Option III. Instead, in 
keeping with its obligations under the SBREFA to consider regulatory 
alternatives, the Department is seeking public comment on an 
alternative suggested by advocates for small business. Under this 
alternative, the Department would revamp its approach to barrier 
removal that is readily achievable as applied to ``qualified small 
business'' entities, which are defined in Sec.  36.104.
    Small business advocates argued for clearer guidance on when 
barrier removal is, and is not, readily achievable. According to the 
small business advocacy groups, the Department's current approach to 
readily achievable barrier removal disproportionately affects small 
businesses for the following reasons: (1) Small businesses are more 
likely to operate in older buildings and facilities; (2) the 1991 
Standards are too numerous and technical for most small business owners 
to understand and then to square with the ADA requirements with state 
and local building or accessibility codes; and (3) small businesses are 
particularly vulnerable to title III litigation and are often compelled 
to settle because they cannot afford the litigation costs involved in 
proving whether an action is readily achievable. Advocates for small 
business endorsed many of the proposals in the ANPRM, such as the safe 
harbor and reduced scoping for some elements.
    The proposed standards will go a long way toward meeting the 
concern of small businesses with regard to harmonizing federal and 
state requirements; the Access Board harmonized the 2004 ADAAG with the 
model codes that form the basis of most state and local accessibility 
codes. Still, the Department is proposing that a qualified small 
business is presumed to have done what is readily achievable in a given 
year if, in the prior tax year, it spent a fixed percentage of its 
revenues on readily achievable barrier removal. The Department believes 
that the efficacy of any such proposal will turn on two determinations: 
(1) The definition of a qualified small business, and (2) the formula 
for calculating what percentage of revenues should be sufficient to 
satisfy the readily achievable presumption. The Department discusses 
its proposal for safe harbor and reduced scoping requirements in the 
section-by-section analysis of Sec.  36.304.
    The Department invites comment on whether public accommodations 
that operate existing facilities with play or recreation areas should 
be exempted from compliance with certain requirements in the 2004 
ADAAG. Existing facilities would continue to be subject to 
accessibility requirements in existing law, but not specifically to the 
requirements in: (1) The Access Board's supplemental guidelines on play 
areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's 
supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 
2002). Under that scenario, the 2004 ADAAG would apply only to new play 
areas and recreation facilities, and would not govern the accessibility 
of existing facilities as legal requirements. Public accommodations 
that operate existing facilities with play or recreation areas, 
pursuant to the ADA's requirements to provide equal opportunity for 
individuals with disabilities, may still have the obligation to provide 
an accessible route to the playground, some accessible equipment, and 
an accessible surface for the play area or recreation facility.
    Question 7: Should the Department exempt owners and operators of 
public accommodations from specific compliance with the supplemental 
requirements for play areas and recreation facilities, and instead 
continue to determine accessibility in these facilities on a case-by-
case basis under existing law? Please provide information on the effect 
of such a proposal on people with disabilities and places of public 
accommodation.
    Service animals. The Department wishes to clarify the obligations 
of public accommodations to accommodate individuals with disabilities 
who use service animals. The Department continues to receive a large 
number of complaints from individuals with service animals. It appears 
that many covered entities are confused regarding their obligations 
under the ADA with regard to individuals with disabilities who use 
service animals. At the same time, some individuals with impairments--
who would not be covered as individuals with disabilities--are claiming 
that their animals are legitimate service animals, whether fraudulently 
or sincerely (albeit mistakenly), to gain access to hotels,

[[Page 34516]]

restaurants, and other places of public accommodation. Another trend is 
the use of wild, exotic, or unusual species, many of which are 
untrained, as service animals. The Department is proposing amendments 
to its regulation on service animals in the hope of mitigating the 
apparent confusion.
    Minimal protection. In the Department's ADA Business Brief on 
Service Animals, which was published in 2002, the Department 
interpreted the minimal protection language within the context of a 
seizure (i.e., alerting and protecting a person who is having a 
seizure). Although the Department received comments urging it to 
eliminate the minimal protection language, the Department continues to 
believe that it should retain the ``providing minimal protection'' 
language and interpret the language to exclude so-called ``attack 
dogs'' that pose a direct threat to others.
    Guidance on permissible service animals. In the original regulation 
implementing title III, ``service animal'' was defined as ``any guide 
dog, signal dog, or other animal,'' and the Department believed, at the 
time, that leaving the species selection up to the discretion of the 
person with a disability was the best course of action. Due to the 
proliferation of animals used by individuals, including wild animals, 
the Department believes that this area needs some parameters. 
Therefore, the Department is proposing to eliminate certain species 
from coverage even if the other elements of the definition are 
satisfied.
    Comfort animals vs. psychiatric service animals. Under the 
Department's present regulatory language, some individuals and entities 
have assumed that the requirement that service animals must be 
individually trained to do work or perform tasks excluded all 
individuals with mental disabilities from having service animals. 
Others have assumed that any person with a psychiatric condition whose 
pet provided comfort to them was covered by the ADA. The Department 
believes that psychiatric service animals that are trained to do work 
or perform a task (e.g., reminding its owner to take medicine) for 
individuals whose disability is covered by the ADA are protected by the 
Department's present regulatory approach.
    Psychiatric service animals can be trained to perform a variety of 
tasks that assist individuals with disabilities to detect the onset of 
psychiatric episodes and ameliorate their effects. Tasks performed by 
psychiatric service animals may include reminding the handler to take 
medicine; providing safety checks, or room searches, or turning on 
lights for persons with Post Traumatic Stress Disorder; interrupting 
self-mutilation by persons with dissociative identity disorders; and 
keeping disoriented individuals from danger.
    The Department is proposing new regulatory text in Sec.  36.104 to 
formalize its position on emotional support/comfort animals, which is 
that ``[a]nimals whose sole function is to provide emotional support, 
comfort, therapy, companionship, therapeutic benefits, or promote 
emotional well-being are not service animals.'' The Department wishes 
to state, however, that the exclusion of emotional support animals from 
ADA coverage does not mean that individuals with psychiatric, 
cognitive, or mental disabilities cannot use service animals. The 
Department proposes specific regulatory text in Sec.  36.104 to make 
this clear: ``The term service animal includes individually trained 
animals that do work or perform tasks for the benefit of individuals 
with disabilities, including psychiatric, cognitive, and mental 
disabilities.'' This language simply clarifies the Department's 
longstanding position and is not a new position.
    The Department's rule is based on the assumption that the title II 
and title III regulations govern a wider range of public settings than 
the settings that allow for emotional support animals. The Department 
recognizes, however, that there are situations not governed exclusively 
by the title II and title III regulations, particularly in the context 
of residential settings and employment, where there may be compelling 
reasons to permit the use of animals whose presence provides emotional 
support to a person with a disability. Accordingly, other federal 
agency regulations governing those situations may appropriately provide 
for increased access for animals other than service animals.
    Modification in policies, practices, or procedures. The preamble to 
Sec.  36.302 of the current title III regulation states that the 
regulatory language was intended to provide the ``broadest feasible 
access'' to individuals with service animals while acknowledging that, 
in rare circumstances, accommodating service animals may not be 
required if it would result in a fundamental alteration of the nature 
of the goods or services the public accommodation provides or the safe 
operation of the public accommodation. 56 FR 35544, 35565 (July 26, 
1991). In order to clarify this provision, the Department is 
incorporating into the proposed regulation guidance that it has 
provided previously through technical assistance.
    Proposed training standards. The Department has always required 
that service animals be individually trained to do work or perform 
tasks for the benefit of an individual with a disability, but has never 
imposed any type of formal training requirements or certification 
process. While some groups have urged the Department to modify this 
position, the Department does not believe such a modification would 
serve the array of individuals with disabilities who use service 
animals.
    Detailed regulatory text changes and the Department's response to 
public comments on these issues and others are discussed below in the 
definition section, Sec.  36.104, and the section on modifications in 
policies, practices, and procedures, Sec.  36.302(c).
    Equipment and furniture. In question seven of the ANPRM, the 
Department asked for comment on whether regulatory guidance is needed 
with respect to the acquisition and use of free-standing equipment or 
furnishings used by covered entities to provide services, and asked for 
specific examples of the circumstances in which such equipment should 
be addressed. The ANPRM explained that free-standing equipment was 
already addressed in the regulation in several different contexts, but 
because covered entities continue to raise questions about their 
obligations to provide accessible free-standing equipment, the 
Department was considering adding specific language on equipment. The 
Department received comments both in favor and against new guidance on 
accessible equipment and furniture, but has decided not to add any 
specific regulation governing equipment at this time.
    Many businesses were opposed to additional requirements for free-
standing equipment, although they favored a move toward clarity and 
specificity. Some businesses were concerned that they lack control of 
the design or manufacturing of such equipment.
    Most organizations and individuals representing individuals with 
disabilities were in favor of adding or clarifying requirements for 
accessible equipment. Disability organizations pointed out that from 
the user's perspective, it is not relevant whether the equipment (e.g., 
ATMs, vending machines) is free-standing or fixed, because the 
equipment must be accessible in order for individuals with disabilities 
to use it.
    A specific point of concern to several commenters was inaccessible 
aisles

[[Page 34517]]

between movable display racks in stores. The Department's current 
regulation addresses this issue under barrier removal, requiring that 
stores rearrange display racks when readily achievable but adding the 
following exception to Sec.  36.304(f): ``The rearrangement of 
temporary or movable structures, such as furniture, equipment, and 
display racks is not readily achievable to the extent that it results 
in a significant loss of selling or serving space.'' If the 
rearrangement of display racks is not readily achievable, stores still 
have an obligation to provide alternatives to barrier removal, such as 
retrieving merchandise from inaccessible shelves or racks. 28 CFR 
36.305(b)(2).
    When the title III regulation was initially proposed in 1991, it 
contained a provision concerning accessible equipment, which required 
that newly purchased furniture or equipment that was made available for 
use at a place of public accommodation be accessible, unless complying 
with this requirement would fundamentally alter the goods, services, 
facilities, privileges, advantages, or accommodations offered, or would 
not be readily achievable. See 56 FR 7452, 7470-71 (Feb. 22, 1991). In 
the final title III regulation promulgated in 1991, the Department 
decided not to include this provision, explaining in the preamble to 
the regulation that ``its requirements are more properly addressed 
under other sections, and . . . there are currently no appropriate 
accessibility standards addressing many types of furniture and 
equipment.'' 56 FR 35544, 35572 (July 26, 1991).
    Equipment has been covered under the Department's ADA regulation, 
including under the provision requiring modifications in policies, 
practices, and procedures and the provision requiring barrier removal, 
even though there is n