
                      DEPARTMENT OF JUSTICE
                 Office of the Attorney General
                         28 CFR PART 36
                   [Order No.                ]

Nondiscrimination On The Basis Of Disability By Public
Accommodations And In Commercial Facilities 

AGENCY:   Department of Justice.

ACTION:   Final Rule.

SUMMARY:  This rule implements title III of the Americans with
Disabilities Act, Pub. L. 101-336, which prohibits discrimination
on the basis of disability by private entities in places of public
accommodation, requires that all new places of public accommodation
and commercial facilities be designed and constructed so as to be
readily accessible to and usable by persons with disabilities, and
requires that examinations or courses related to licensing or
certification for professional and trade purposes be accessible to
persons with disabilities.

EFFECTIVE DATE:  January 26, 1992.

FOR FURTHER INFORMATION CONTACT:  Barbara S. Drake, Deputy
Assistant Attorney General, Civil Rights Division; Stewart B.
Oneglia, Chief, Coordination and Review Section, Civil Rights
Division; and John Wodatch, Director, Office on the Americans with
Disabilities Act, Civil Rights Division; all of the U.S. Department
of Justice, Washington, D.C. 20530.  They may be contacted through
the Division's ADA Information Line at (202) 514-0301 (Voice),
(202) 514-0381 (TDD), or (202) 514-0383 (TDD).  These telephone
numbers are not toll-free numbers.

     Copies of this rule are available in the following alternate
formats:  large print, Braille, electronic file on computer disk,
and audio-tape.  Copies may be obtained from the Office on the
Americans with Disabilities Act at (202) 514-0301 (Voice) or (202)
514-0381 (TDD).  The rule is also available on electronic bulletin
board at (202) 514-6193.  These telephone numbers are not toll-free
numbers.  

SUPPLEMENTARY INFORMATION:

Background.  

     The landmark Americans with Disabilities Act ("ADA" or "the
Act"), enacted on July 26, 1990, provides comprehensive civil
rights protections to individuals with disabilities in the areas of
employment, public accommodations, State and local government
services, and telecommunications.

     The legislation was originally developed by the National
Council on Disability, an independent Federal agency that reviews
and makes recommendations concerning Federal laws, programs, and
policies affecting individuals with disabilities.  In its 1986
study, "Toward Independence," the National Council on Disability
recognized the inadequacy of the existing, limited patchwork of
protections for individuals with disabilities, and recommended the
enactment of a comprehensive civil rights law requiring equal
opportunity for individuals with disabilities throughout American
life.  Although the 100th Congress did not act on the legislation,
which was first introduced in 1988, then-Vice-President George Bush
endorsed the concept of comprehensive disability rights legislation
during his presidential campaign and became a dedicated advocate of
the ADA.

     The ADA was reintroduced in modified form in May 1989 for
consideration by the 101st Congress.  In June 1989, Attorney
General Dick Thornburgh, in testimony before the Senate Committee
on Labor and Human Resources, reiterated the Bush Administration's
support for the ADA and suggested changes in the proposed
legislation.  After extensive negotiations between Senate sponsors
and the Administration, the Senate passed an amended version of the
ADA on September 7, 1989, by a vote of 76-8.

     In the House, jurisdiction over the ADA was divided among four
committees, each of which conducted extensive hearings and issued
detailed committee reports:  the Committee on Education and Labor,
the Committee on the Judiciary, the Committee on Public Works and
Transportation, and the Committee on Energy and Commerce.  On
October 12, 1989, the Attorney General testified in favor of the
legislation before the Committee on the Judiciary.  The Civil
Rights Division, on February 22, 1990, provided testimony to the
Committee on Small Business, which although technically without
jurisdiction over the bill, conducted hearings on the legislation's
impact on small business.

     After extensive committee consideration and floor debate, the
House of Representatives passed an amended version of the Senate
bill on May 22, 1990, by a vote of 403-20.  After resolving their
differences in conference, the Senate and House took final action
on the bill -- the House passing it by a vote of 377-28 on July 12,
1990, and the Senate, a day later, by a vote of 91-6.  The ADA was
enacted into law with the President's   
signature at a White House ceremony on July 26, 1990.

Rulemaking History.

     On February 22, 1991, the Department of Justice published a
notice of proposed rulemaking (NPRM) implementing title III of the
ADA in the Federal Register (56 FR 7452).  On February 28, 1991,
the Department published a notice of proposed rulemaking
implementing subtitle A of title II of the ADA in the Federal
Register (56 FR 8538).  Each NPRM solicited comments on the
definitions, standards, and procedures of the proposed rules.  By
the April 29, 1991, close of the comment period of the NPRM for
title II, the Department had received 2,718 comments on the two
proposed rules.  Following the close of the comment period, the
Department received an additional 222 comments.

     In order to encourage public participation in the development
of the Department's rules under the ADA, the Department held four
public hearings.  Hearings were held in Dallas, Texas on March 4-5,
1991; in Washington, D.C. on March 13-14-15, 1991; in San
Francisco, California on March 18-19, 1991; and in Chicago,
Illinois on March 27-28, 1991.  At these hearings, 329 persons
testified and l,567 pages of testimony were compiled.  Transcripts
of the hearings were included in the Department's rulemaking
docket.

     The comments that the Department received occupy almost six
feet of shelf space and contain over 10,000 pages.  The Department
received comments from individuals from all fifty States and the
District of Columbia.  Nearly 75% of the comments came from
individuals and from organizations representing the interests of
persons with disabilities.  The Department received 292 comments
from entities covered by the ADA and trade associations
representing businesses in the private sector, and 67 from
government units, such as mayors' offices, public school districts,
and various State agencies working with individuals with
disabilities.

     The Department received one comment from a consortium of 511
organizations representing a broad spectrum of persons with
disabilities.  In addition, at least another 25 commenters endorsed
the position expressed by this consortium or submitted identical
comments on one or both proposed regulations.

     An organization representing persons with hearing impairments
submitted a large number of comments.  This organization presented
the Department with 479 individual comments, each providing in
chart form a detailed representation of what type of auxiliary aid
or service would be useful in the various categories of places of
public accommodation.

     The Department received a number of comments based on almost
ten different form letters.  For example, individuals who have a
heightened sensitivity to a variety of chemical substances
submitted 266 post cards detailing how exposure to various
environmental conditions restricts their access to places of public
accommodation and to commercial facilities.  Another large group of
form letters came from groups affiliated with independent living
centers.

     The vast majority of the comments addressed the Department's
proposal implementing title III.  Just over 100 comments addressed
only issues presented in the proposed title II regulation.

     The Department read and analyzed each comment that was
submitted in a timely fashion.  Transcripts of the four hearings
were analyzed along with the written comments.  The decisions that
the Department has made in response to these comments, however,
were not made on the basis of the number of commenters addressing
any one point but on a thorough consideration of the merits of the
points of view expressed in the comments.  Copies of the written
comments, including transcripts of the four hearings, will remain
available for public inspection in Room 854 of the HOLC Building,
320 First Street, N.W., Washington, D.C. from 10:00 a.m. to 5:00
p.m., Monday through Friday, except for legal holidays, until
August 30, 1991.

     The Americans with Disabilities Act gives to individuals with
disabilities civil rights protections with respect to
discrimination that are parallel to those provided to individuals
on the basis of race, color, national origin, sex, and religion. 
It combines in its own unique formula elements drawn principally
from two key civil rights statutes -- the Civil Rights Act of 1964
and title V of the Rehabilitation Act of 1973.  The ADA generally
employs the framework of titles II (42 U.S.C. 2000a to 2000a-6) and
VII (42 U.S.C. 2000e to 2000e-16) of the Civil Rights Act of 1964
for coverage and enforcement and the terms and concepts of section
504 of the Rehabilitation Act of 1973 (29 U.S.C. 794) for what
constitutes discrimination.

     Other recently enacted legislation will facilitate compliance
with the ADA.  As amended in 1990, the Internal Revenue Code allows
a deduction of up to $15,000 per year for expenses associated with
the removal of qualified architectural and transportation barriers. 
The 1990 amendment also permits eligible small businesses to
receive a tax credit for certain costs of compliance with the ADA. 
An eligible small business is one whose gross receipts do not
exceed $1,000,000 or whose workforce does not consist of more than
30 full-time workers.  Qualifying businesses may claim a credit of
up to 50 percent of eligible access expenditures that exceed $250
but do not exceed $10,250.  Examples of eligible access
expenditures include the necessary and reasonable costs of removing
barriers, providing auxiliary aids, and acquiring or modifying
equipment or devices.

     In addition, the Communications Act of 1934 has been amended
by the Television Decoder Circuitry Act of 1990, Pub. L. 101-431,
to require as of July 1, 1993, that all televisions with screens of
13 inches or wider have built-in decoder circuitry for displaying
closed captions.  This new law will eventually lessen dependence on
the use of portable decoders in achieving compliance with the
auxiliary aids and services requirements of the rule.

Overview of the Rule.

     The final rule establishes standards and procedures for the
implementation of title III of the Act, which addresses
discrimination by private entities in places of public
accommodation, commercial facilities, and certain examinations and
courses.  The careful consideration Congress gave title III is
reflected in the detailed statutory provisions and the expansive
reports of the Senate Committee on Labor and Human Resources and
the House Committees on the Judiciary, and Education and Labor. 
The final rule follows closely the language of the Act and
supplements it, where appropriate, with interpretive material found
in the committee reports.

     The rule is organized into six subparts.  Subpart A,
"General," includes the purpose and application sections, describes
the relationship of the Act to other laws, and defines key terms
used in the regulation.

     Subpart B, "General Requirements," contains material derived
from what the statute calls the "General Rule," and the "General
Prohibition," in sections 302(a) and 302(b)(1), respectively, of
the Act.  Topics addressed by this subpart include discriminatory
denials of access or participation, landlord and tenant
obligations, the provision of unequal benefits, indirect
discrimination through contracting, the participation of
individuals with disabilities in the most integrated setting
appropriate to their needs, and discrimination based on association
with individuals with disabilities.  Subpart B also contains a
number of "miscellaneous" provisions derived from title V of the
Act that involve issues such as retaliation and coercion for
asserting ADA rights, illegal drug use, insurance, and restrictions
on smoking in places of public accommodation.  Finally, subpart B
contains additional general provisions regarding direct threats to
health or safety, maintenance of accessible features of facilities
and equipment, and the coverage of places of public accommodation
located in private residences.

     Subpart C, "Specific Requirements," addresses the "Specific
Prohibitions" in section 302(b)(2) of the Act.  Included in this
subpart are topics such as discriminatory eligibility criteria;
reasonable modifications in policies, practices or procedures;
auxiliary aids and services; the readily achievable removal of
barriers and alternatives to barrier removal; the extent to which
inventories of accessible or special goods are required; seating in
assembly areas; personal devices and services; and transportation
provided by public accommodations.  Subpart C also incorporates the
requirements of section 309 of title III relating to examinations
and courses.

     Subpart D, "New Construction and Alterations," sets forth the
requirements for new construction and alterations based on section
303 of the Act.  It addresses such issues as what facilities are
covered by the new construction requirements, what an alteration
is, the application of the elevator exception, the path of travel
obligations resulting from an alteration to a primary function
area, requirements for commercial facilities located in private
residences, and the application of alterations requirements to
historic buildings and facilities.

     Subpart E, "Enforcement," describes the Act's title III
enforcement procedures, including private actions, as well as
investigations and litigation conducted by the Attorney General. 
These provisions are based on sections 308 and 310(b) of the Act.

     Subpart F, "Certification of State Laws or Local Building
Codes," establishes procedures for the certification of State or
local building accessibility ordinances that meet or exceed the new
construction and alterations requirements of the ADA.  These
provisions are based on section 308(b)(1)(A)(ii) of the Act.

     The section-by-section analysis of the rule explains in detail
the provisions of each of these subparts. 

     The Department is also today publishing a final rule for the
implementation and enforcement of subtitle A of title II of the
Act.  This rule prohibits discrimination on the basis of disability
against qualified individuals with disabilities in all services,
programs, or activities of State and local government.

Regulatory Process Matters.  

     This final rule has been reviewed by the Office of Management
and Budget (OMB) under Executive Order 12291.  The Department is
preparing a regulatory impact analysis (RIA) of this rule, and the
Architectural and Transportation Barriers Compliance Board is
preparing an RIA for its Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG) that
are incorporated in Appendix A of the Department's final rule. 
Draft copies of both preliminary RIAs are available for comment;
the Department will provide copies of these documents to the public
upon request.  Commenters are urged to provide additional
information as to the costs and benefits associated with this rule. 
This will facilitate the development of a final RIA by January 1,
1992.

     The Department's RIA will evaluate the economic impact of the
final rule.  Included among those title III provisions that are
likely to result in significant economic impact are the
requirements for auxiliary aids, barrier removal in existing
facilities, and readily accessible new construction and
alterations.  An analysis of the costs of these provision will be
included in the RIA.     

     The preliminary RIA prepared for the notice of proposed
rulemaking contained all of the available information that would
have been included in a preliminary regulatory flexibility
analysis, had one been prepared under the Regulatory Flexibility
Act, concerning the rule's impact on small entities.  The final RIA
will contain all of the information that is required in a final
regulatory flexibility analysis, and will serve as such an
analysis.  Moreover, the extensive notice and comment procedure
followed by the Department in the promulgation of this rule, which
included public hearings, dissemination of materials, and provision
of speakers to affected groups, clearly provided any interested
small entities with the notice and opportunity for comment provided
for under the Regulatory Flexibility Act procedures. 

     This final rule will preempt State laws affecting entities
subject to the ADA only to the extent that those laws directly
conflict with the statutory requirements of the ADA.  Therefore,
this rule is not subject to Executive Order 12612, and a Federalism
Assessment is not required.

     The reporting and recordkeeping requirements described in
subpart F of the rule are considered to be information collection
requirements as that term is defined by the Office of Management
and Budget in 5 CFR Part 1320.  Accordingly, those information
collection requirements have been submitted to OMB for review
pursuant to the Paperwork Reduction Act.  

Section-By-Section Analysis and Response to Comments

Subpart A -- General.

Section 36.101  Purpose.

     Section 36.101 states the purpose of the rule, which is to
effectuate title III of the Americans with Disabilities Act of
1990.  This title prohibits discrimination on the basis of
disability by public accommodations, requires places of public
accommodation and commercial facilities to be designed,
constructed, and altered in compliance with the accessibility
standards established by this part, and requires that examinations
or courses related to licensing or certification for professional
or trade purposes be accessible to persons with disabilities.

Section 36.102  Application.

     Section 36.102 specifies the range of entities and facilities
that have obligations under the final rule.  The rule applies to
any public accommodation or commercial facility as those terms are
defined in {36.104.  It also applies, in accordance with section
309 of the ADA, to private entities that offer examinations or
courses related to applications, licensing, certification, or
credentialing for secondary or postsecondary education,
professional, or trade purposes.  Except as provided in {36.206,
"Retaliation or coercion," this part does not apply to individuals
other than public accommodations or to public entities.  Coverage
of private individuals and public entities is discussed in the
preamble to {36.206.

     As defined in {36.104, a public accommodation is a private
entity that owns, leases or leases to, or operates a place of
public accommodation.  Section 36.102(b)(2) emphasizes that the
general and specific public accommodations requirements of subparts
B and C obligate a public accommodation only with respect to the
operations of a place of public accommodation.  This distinction is
drawn in recognition of the fact that a private entity that meets
the regulatory definition of public accommodation could also own,
lease or lease to, or operate facilities that are not places of
public accommodation.  The rule would exceed the reach of the ADA
if it were to apply the public accommodations requirements of
subparts B and C to the operations of a private entity that do not
involve a place of public accommodation.  Similarly, {36.102(b)(3)
provides that the new construction and alterations requirements of
subpart D obligate a public accommodation only with respect to
facilities used as, or designed or constructed for use as, places
of public accommodation or commercial facilities.

     On the other hand, as mandated by the ADA and reflected in
{36.102(c), the new construction and alterations requirements of
subpart D apply to a commercial facility whether or not the
facility is a place of public accommodation, or is owned, leased,
leased to, or operated by a public accommodation.

     Section 36.102(e) states that the rule does not apply to any
private club, religious entity, or public entity.  Each of these
terms is defined in {36.104.  The exclusion of private clubs and
religious entities is derived from section 307 of the ADA; and the
exclusion of public entities is based on the statutory definition
of public accommodation in section 301(7) of the ADA, which
excludes entities other than private entities from coverage under
title III of the ADA.

Section 36.103  Relationship to other laws.

     Section 36.103 is derived from sections 501(a) and (b) of the
ADA.  Paragraph (a) provides that, except as otherwise specifically
provided by this part, the ADA is not intended to apply lesser
standards than are required under title V of the Rehabilitation Act
of 1973, as amended (29 U.S.C. 790-794), or the regulations
implementing that title.  The standards of title V of the
Rehabilitation Act apply for purposes of the ADA to the extent that
the ADA has not explicitly adopted a different standard from title
V.  Where the ADA explicitly provides a different standard from
section 504, the ADA standard applies to the ADA, but not to
section 504.  For example, section 504 requires that all federally
assisted programs and activities be readily accessible to and
usable by individuals with handicaps, even if major structural
alterations are necessary to make a program accessible.  Title III
of the ADA, in contrast, only requires alterations to existing
facilities if the modifications are "readily achievable," that is,
able to be accomplished easily and without much difficulty or
expense.  A public accommodation that is covered under both section
504 and the ADA is still required to meet the "program
accessibility" standard in order to comply with section 504, but
would not be in violation of the ADA unless it failed to make
"readily achievable" modifications.  On the other hand, an entity
covered by the ADA is required to make "readily achievable"
modifications, even if the program can be made accessible without
any architectural modifications.  Thus, an entity covered by both
section 504 and title III of the ADA must meet both the "program
accessibility" requirement and the "readily achievable"
requirement.

     Paragraph (b) makes explicit that the rule does not affect the
obligation of recipients of Federal financial assistance to comply
with the requirements imposed under section 504 of the
Rehabilitation Act of 1973.

     Paragraph (c) makes clear that Congress did not intend to
displace any of the rights or remedies provided by other Federal
laws or other State or local laws (including State common law) that
provide greater or equal protection to individuals with
disabilities.  A plaintiff may choose to pursue claims under a
State law that does not confer greater substantive rights, or even
confers fewer substantive rights, if the alleged violation is
protected under the alternative law and the remedies are greater. 
For example, assume that a person with a physical disability seeks
damages under a State law that allows compensatory and punitive
damages for discrimination on the basis of physical disability, but
does not allow them on the basis of mental disability.  In that
situation, the State law would provide narrower coverage, by
excluding mental disabilities, but broader remedies, and an
individual covered by both laws could choose to bring an action
under both laws.  Moreover, State tort claims confer greater
remedies and are not preempted by the ADA.  A plaintiff may join a
State tort claim to a case brought under the ADA.  In such a case,
the plaintiff must, of course, prove all the elements of the State
tort claim in order to prevail under that cause of action.

     A commenter had concerns about privacy requirements for
banking transactions using telephone relay services.   Title IV of
the Act provides adequate protections for ensuring the
confidentiality of communications using the relay services.  This
issue is more appropriately addressed by the Federal Communications
Commission in its regulation implementing title IV of the Act.

Section 36.104  Definitions.

     "Act."  The word "Act" is used in the regulation to refer to
the Americans with Disabilities Act of l990, Pub. L. l0l-336, which
is also referred to as the "ADA." 

     "Commerce."  The definition of "commerce" is identical to the
statutory definition provided in section 301(1) of the ADA.  It
means travel, trade, traffic, commerce, transportation, or
communication among the several States, between any foreign country
or any territory or possession and any State, or between points in
the same State but through another State or foreign country. 
Commerce is defined in the same manner as in title II of the Civil
Rights Act of 1964, which prohibits racial discrimination in public
accommodations.

     The term "commerce" is used in the definition of "place of 
public accommodation."  According to that definition, one of 
the criteria that an entity must meet before it can be considered
a place of public accommodation is that its operations affect
commerce.  The term "commerce" is similarly used in the definition
of "commercial facility."

     The use of the phrase "operations affect commerce" applies the
full scope of coverage of the Commerce Clause of the Constitution
in enforcing the ADA.  The Constitution gives Congress broad
authority to regulate interstate commerce, including the activities
of local business enterprises (e.g., a physician's office, a
neighborhood restaurant, a laundromat, or a bakery) that affect
interstate commerce through the purchase or sale of products
manufactured in other States, or by providing services to
individuals from other States.  Because of the integrated nature of
the national economy, the ADA and this final rule will have
extremely broad application.

     "Commercial facilities" are those facilities that are intended
for nonresidential use by a private entity and whose operations
affect commerce.  As explained under {36.401, "New construction,"
the new construction and alteration requirements of subpart D of
the rule apply to all commercial facilities, whether or not they
are places of public accommodation.  Those commercial facilities
that are not places of public accommodation are not subject to the
requirements of subparts B and C (e.g., those requirements
concerning auxiliary aids and general nondiscrimination
provisions).

     Congress recognized that the employees within commercial
facilities would generally be protected under title I (employment)
of the Act.  However, as the House Committee on Education and Labor
pointed out, "[t]o the extent that new facilities are built in a
manner that make[s] them accessible to all individuals, including
potential employees, there will be less of a need for individual
employers to engage in reasonable accommodations for particular
employees."  H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at
117 (1990) [hereinafter "Education and Labor report"].  While
employers of fewer than 15 employees are not covered by title I's
employment discrimination provisions, there is no such limitation
with respect to new construction covered under title III.  Congress
chose not to so limit the new construction provisions because of
its desire for a uniform requirement of accessibility in new
construction, because accessibility can be accomplished easily in
the design and construction stage, and because future expansion of
a business or sale or lease of the property to a larger employer or
to a business that is a place of public accommodation is always a
possibility.

     The term "commercial facilities" is not intended to be defined
by dictionary or common industry definitions.  Included in this
category are factories, warehouses, office buildings, and other
buildings in which employment may occur.  The phrase, "whose
operations affect commerce," is to be read broadly, to include all
types of activities reached under the commerce clause of the
Constitution.  

     Privately operated airports are also included in the category
of commercial facilities.  They are not, however, places of public
accommodation because they are not terminals used for "specified
public transportation."  (Transportation by aircraft is
specifically excluded from the statutory definition of "specified
public transportation.")  Thus, privately operated airports are
subject to the new construction and alteration requirements of this
rule (subpart D) but not to subparts B and C.  (Airports operated
by public entities are covered by title II of the Act.)  Places of
public accommodation located within airports, such as restaurants,
shops, lounges, or conference centers, however, are covered by
subparts B and C of this part.

     The statute's definition of "commercial facilities"
specifically includes only facilities "that are intended for
nonresidential use" and specifically exempts those facilities that
are covered or expressly exempted from coverage under 
the Fair Housing Act of 1968, as amended (42 U.S.C. 3601-3631). 
The interplay between the Fair Housing Act and the ADA with respect
to those facilities that are "places of public accommodation" was
the subject of many comments and is addressed in the preamble
discussion of the definition of "place of public accommodation."

     "Current illegal use of drugs."  The phrase "current illegal
use of drugs" is used in {36.209.  Its meaning is discussed in the
preamble for that section.

     "Disability."  The definition of the term "disability" 
is comparable to the definition of the term "individual with
handicaps" in section 7(8)(B) of the Rehabilitation Act and section
802(h) of the Fair Housing Act.  The Education and Labor Committee
report makes clear that the analysis of the 
term "individual with handicaps" by the Department of Health,
Education, and Welfare in its regulations implementing section 504
(42 FR 22685 (May 4, 1977)) and the analysis by the Department of
Housing and Urban Development in its regulation implementing the
Fair Housing Amendments Act of 1988 (54 FR 3232 (Jan. 23, 1989))
should also apply fully to the term "disability" (Education and
Labor report at 50).

     The use of the term "disability" instead of "handicap" and the
term "individual with a disability" instead of "individual with
handicaps" represents an effort by the Congress to make use of up-
to-date, currently accepted terminology.  The terminology applied
to individuals with disabilities is a very significant and
sensitive issue.  As with racial and ethnic terms, the choice of
words to describe a person with a disability is overlaid with
stereotypes, patronizing attitudes, and other emotional
connotations.  Many individuals with disabilities, and
organizations representing such individuals, object to the use of
such terms as "handicapped person" or "the handicapped."  In other
recent legislation, Congress also recognized this shift in
terminology, e.g., by changing the name of the National Council on
the Handicapped to the National Council on Disability (Pub. L. 100-
630).

     In enacting the Americans with Disabilities Act, Congress
concluded that it was important for the current legislation to use
terminology most in line with the sensibilities of most Americans
with disabilities.  No change in definition or substance is
intended nor should be attributed to this change in phraseology.

     The term "disability" means, with respect to an individual--
     (A)  a physical or mental impairment that substantially limits
one or more of the major life activities of such individual;

     (B)  a record of such an impairment; or

     (C)  being regarded as having such an impairment.

     If an individual meets any one of these three tests, he 
or she is considered to be an individual with a disability for
purposes of coverage under the Americans with Disabilities Act.

     Congress adopted this same basic definition of "disability,"
first used in the Rehabilitation Act of 1973 and in the Fair
Housing Amendments Act of 1988, for a number of reasons.  It has
worked well since it was adopted in 1974.  There is a substantial
body of administrative interpretation and judicial precedent on
this definition.  Finally, it would not be possible to guarantee
comprehensiveness by providing a list of specific disabilities,
especially because new disorders may be recognized in the future,
as they have since the definition was first established in 1974.

Test A -- A physical or mental impairment that substantially     
          limits one or more of the major life activities of 
          such individual

     Physical or mental impairment.  Under the first test, an
individual must have a physical or mental impairment.  As explained
in paragraph (1)(i) of the definition, "impairment" means any
physiological disorder or condition, cosmetic disfigurement, or
anatomical loss affecting one or more of the following body
systems:  neurological; musculoskeletal; special sense organs
(including speech organs that are not respiratory, such as vocal
cords, soft palate, and tongue); respiratory, including speech
organs; cardiovascular; reproductive; digestive; genitourinary;
hemic and lymphatic; skin; and endocrine.  It also means any mental
or psychological disorder, such as mental retardation, organic
brain syndrome, emotional or mental illness, and specific learning
disabilities.  This list closely tracks the one used in the
regulations for section 504 of the Rehabilitation Act of 1973 (see,
e.g., 45 CFR 84.3(j)(2)(i)).  

     Many commenters asked that "traumatic brain injury" be added
to the list in paragraph (1)(i).  Traumatic brain injury is already
included because it is a physiological condition affecting one of
the listed body systems, i.e., "neurological."  Therefore, it was
unnecessary for the Department to add the term to the regulation.

     It is not possible to include a list of all the specific
conditions, contagious and noncontagious diseases, or infections
that would constitute physical or mental impairments because of the
difficulty of ensuring the comprehensiveness of such a list,
particularly in light of the fact that other conditions or
disorders may be identified in the future.  However, the list of
examples in paragraph (1)(iii) of the definition includes: 
orthopedic, visual, speech and hearing impairments; cerebral palsy;
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart
disease, diabetes, mental retardation, emotional illness, specific
learning disabilities, HIV disease (symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism.

     The examples of "physical or mental impairments" in paragraph
(1)(iii) are the same as those contained in many section 504
regulations, except for the addition of the phrase "contagious and
noncontagious" to describe the types of diseases and conditions
included, and the addition of "HIV disease (symptomatic or
asymptomatic)" and "tuberculosis" to the list of examples.  These
additions are based on the ADA committee reports, caselaw, and
official legal opinions interpreting section 504.  In School Board
of Nassau County v. Arline, 480 U.S. 273 (1987), a case involving
an individual with tuberculosis, the Supreme Court held that people
with contagious diseases are entitled to the protections afforded
by section 504.  Following the Arline decision, this Department's
Office of Legal Counsel issued a legal opinion that concluded that
symptomatic HIV disease is an impairment that substantially limits
a major life activity; therefore it has been included in the
definition of disability under this part.  The opinion also
concluded that asymptomatic HIV disease is an impairment that
substantially limits a major life activity, either because of its
actual effect on the individual with HIV disease or because the
reactions of other people to individuals with HIV disease cause
such individuals to be treated as though they are disabled.  See
Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Arthur
B. Culvahouse, Jr., Counsel to the President (Sept. 27, l988),
reprinted in Hearings on S. 933, the Americans with Disabilities
Act, Before the Subcomm. on the Handicapped of the Senate Comm. on
Labor and Human Resources, l0lst Cong., 1st Sess. 346 (l989).  The
phrase "symptomatic or asymptomatic" was inserted in the final rule
after "HIV disease" in response to commenters who suggested that
the clarification was necessary to give full meaning to the
Department's opinion.

     Paragraph (1)(iv) of the definition states that the phrase
"physical or mental impairment" does not include homosexuality or
bisexuality.  These conditions were never considered impairments
under other Federal disability laws.  Section 511(a) of the statute
makes clear that they are likewise not to be considered impairments
under the Americans with Disabilities Act.

     Physical or mental impairment does not include simple physical
characteristics, such as blue eyes or black hair.  
Nor does it include environmental, cultural, economic, or other
disadvantages, such as having a prison record, or being poor. 
Nor is age a disability.  Similarly, the definition does not
include common personality traits such as poor judgment or a quick
temper where these are not symptoms of a mental or psychological
disorder.  However, a person who has these characteristics and also
has a physical or mental impairment 
may be considered as having a disability for purposes of the 
Americans with Disabilities Act based on the impairment.

     Substantial limitation of a major life activity.  Under Test
A, the impairment must be one that "substantially limits a major
life activity."  Major life activities include such things as
caring for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and working.  For example,
a person who is paraplegic is substantially limited in the major
life activity of walking, a person who is blind is substantially
limited in the major life activity of seeing, and a person who is
mentally retarded is substantially limited in the major life
activity of learning.  A person with traumatic brain injury is
substantially limited in the major life activities of caring for
one's self, learning, and working because of memory deficit,
confusion, contextual difficulties, and inability to reason
appropriately.

     A person is considered an individual with a disability for
purposes of Test A, the first prong of the definition, when the
individual's important life activities are restricted as to the
conditions, manner, or duration under which they can be performed
in comparison to most people.  A person with a minor, trivial
impairment, such as a simple infected finger, is not impaired in a
major life activity.  A person who can walk for 10 miles
continuously is not substantially limited in walking merely
because, on the eleventh mile, he or she begins to experience 
pain, because most people would not be able to walk eleven miles
without experiencing some discomfort.  

     The Department received many comments on the proposed rule's
inclusion of the word "temporary" in the definition of
"disability."  The preamble indicated that impairments are not
necessarily excluded from the definition of "disability" simply
because they are temporary, but that the duration, or expected
duration, of an impairment is one factor that may properly be
considered in determining whether the impairment substantially
limits a major life activity.  The preamble recognized, however,
that temporary impairments, such as a broken leg, are not commonly
regarded as disabilities, and only in rare circumstances would the
degree of the limitation and its expected duration be substantial. 
Nevertheless, many commenters objected to inclusion of the word
"temporary" both because it is not in the statute and because it is
not contained in the definition of "disability" set forth in the
title I regulations of the Equal Employment Opportunity Commission
(EEOC).  The word "temporary" has been deleted from the final rule
to conform with the statutory language.  The question of whether a
temporary impairment is a disability must be resolved on a case-by-
case basis, taking into consideration both the duration (or
expected duration) of the impairment and the extent to which it
actually limits a major life activity of the affected individual.

     The question of whether a person has a disability should be
assessed without regard to the availability of mitigating measures,
such as reasonable modifications or auxiliary aids and services. 
For example, a person with hearing loss is substantially limited in
the major life activity of hearing, even though the loss may be
improved through the use of a hearing aid.  Likewise, persons with
impairments, such as epilepsy or diabetes, that substantially limit
a major life activity, are covered under the first prong of the
definition of disability, even if the effects of the impairment are
controlled by medication.

     Many commenters asked that environmental illness (also known
as multiple chemical sensitivity) as well as allergy to cigarette
smoke be recognized as disabilities.  The Department, however,
declines to state categorically that these types of allergies or
sensitivities are disabilities, because the determination as to
whether an impairment is a disability depends on whether, given the
particular circumstances at issue, the impairment substantially
limits one or more major life activities (or has a history of, or
is regarded as having such an effect).

     Sometimes respiratory or neurological functioning is so
severely affected that an individual will satisfy the requirements
to be considered disabled under the regulation.  Such an individual
would be entitled to all of the protections afforded by the Act and
this part.  In other cases, individuals may be sensitive to
environmental elements or to smoke but their sensitivity will not
rise to the level needed to constitute a disability.  For example,
their major life activity of breathing may be somewhat, but not
substantially, impaired.  In such circumstances, the individuals
are not disabled and are not entitled to the protections of the
statute despite their sensitivity to environmental agents.

     In sum, the determination as to whether allergies to cigarette
smoke, or allergies or sensitivities characterized by the
commenters as environmental illness are disabilities covered by the
regulation must be made using the same case-by-case analysis that
is applied to all other physical or mental impairments.  Moreover,
the addition of specific regulatory provisions relating to
environmental illness in the final rule would be inappropriate at
this time pending future consideration of the issue by the
Architectural and Transportation Barriers Compliance Board, the
Environmental Protection Agency, and the Occupational Safety and
Health Administration of the Department of Labor.

Test B -- A record of such an impairment

     This test is intended to cover those who have a record of an
impairment.  As explained in paragraph (3) of the rule's definition
of disability, this includes a person who has a history of an
impairment that substantially limited a major life activity, such
as someone who has recovered from an impairment.  It also includes
persons who have been misclassified as having an impairment.  

     This provision is included in the definition in part to
protect individuals who have recovered from a physical or 
mental impairment that previously substantially limited them 
in a major life activity.  Discrimination on the basis of such 
a past impairment is prohibited.  Frequently occurring examples of
the first group (those who have a history of an impairment) are
persons with histories of mental or emotional illness, heart
disease, or cancer; examples of the second group (those who have
been misclassified as having an impairment) are persons who have
been misclassified as having mental retardation or mental illness.

Test C -- Being regarded as having such an impairment

     This test, as contained in paragraph (4) of the definition, is
intended to cover persons who are treated by a private entity or
public accommodation as having a physical or mental impairment that
substantially limits a major life activity.  It applies when a
person is treated as if he or she has an impairment that
substantially limits a major life activity, regardless of whether
that person has an impairment.

     The Americans with Disabilities Act uses the same "regarded
as" test set forth in the regulations implementing section 504 of
the Rehabilitation Act.  See, e.g., 28 CFR 42.540(k)(2)(iv), which
provides:

     (iv)  "Is regarded as having an impairment" means (A) Has
     a physical or mental impairment that does not
     substantially limit major life activities but that is
     treated by a recipient as constituting such a limitation;
     (B)  Has a physical or mental impairment that
     substantially limits major life activities only as a
     result of the attitudes of others toward such impairment;
     or (C)  Has none of the impairments defined in paragraph
     (k)(2)(i) of this section but is treated by a recipient
     as having such an impairment.

     The perception of the private entity or public accommodation
is a key element of this test.  A person who perceives himself or
herself to have an impairment, but does not have an impairment, and
is not treated as if he or she has an impairment, is not protected
under this test.  A person would be covered under this test if a
restaurant refused to serve that person because of a fear of
"negative reactions" of others to that person.  A person would also
be covered if a public accommodation refused to serve a patron
because it perceived that the patron had an impairment that limited
his or her enjoyment of the goods or services being offered.

     For example, persons with severe burns often encounter
discrimination in community activities, resulting in substantial
limitation of major life activities.  These persons would be
covered under this test based on the attitudes of others towards
the impairment, even if they did not view themselves as "impaired."

     The rationale for this third test, as used in the Rehabi-
litation Act of 1973, was articulated by the Supreme Court 
in Arline, 480 U.S. 273 (1987).  The Court noted that, although 
an individual may have an impairment that does not in fact
substantially limit a major life activity, the reaction of 
others may prove just as disabling.  "Such an impairment might not
diminish a person's physical or mental capabilities, but could
nevertheless substantially limit that person's ability to work as
a result of the negative reactions of others to the impairment." 
Id. at 283.  The Court concluded that, by including this test in
the Rehabilitation Act's definition, "Congress acknowledged that
society's accumulated myths and fears about disability and disease
are as handicapping as are the physical limitations that flow from
actual impairment."  Id. at 284.

     Thus, a person who is not allowed into a public accommodation
because of the myths, fears, and stereotypes associated with
disabilities would be covered under this third test whether or not
the person's physical or mental condition would be considered a
disability under the first or second test in the definition.

     If a person is refused admittance on the basis of an actual or
perceived physical or mental condition, and the public
accommodation can articulate no legitimate reason for the refusal
(such as failure to meet eligibility criteria), a perceived concern
about admitting persons with disabilities could be inferred and the
individual would qualify for coverage under the "regarded as" test. 
A person who is covered because of being regarded as having an
impairment is not required to show that the public accommodation's
perception is inaccurate (e.g., that he will be accepted by others,
or that insurance rates will not increase) in order to be admitted
to the public accommodation.

     Paragraph (5) of the definition lists certain conditions that
are not included within the definition of "disability."  The
excluded conditions are:  transvestism, transsexualism, pedophilia,
exhibitionism, voyeurism, gender identity disorders not resulting
from physical impairments, other sexual behavior disorders,
compulsive gambling, kleptomania, pyromania, and psychoactive
substance use disorders resulting from current illegal use of
drugs.  Unlike homosexuality and bisexuality, which are not
considered impairments under either the Americans with Disabilities
Act (see the definition of "disability," paragraph (1)(iv)) or
section 504, the conditions listed in paragraph (5), except for
transvestism, are not necessarily excluded as impairments under
section 504.  (Transvestism was excluded from the definition of
disability for section 504 by the Fair Housing Amendments Act of
1988, Pub. L. 100-430, {6(b).) The phrase "current illegal use of
drugs" used in this definition is explained in the preamble to
{36.209.

     "Drug."  The definition of the term "drug" is taken from 
section 510(d)(2) of the ADA.

     "Facility."  "Facility" means all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other
conveyances, roads, walks, passageways, parking lots, or other real
or personal property, including the site where the building,
property, structure, or equipment is located.  Committee reports
made clear that the definition of facility was drawn from the
definition of facility in current Federal regulations (see, e.g.,
Education and Labor report at 114).  It includes both indoor and
outdoor areas where human-constructed improvements, structures,
equipment, or property have been added to the natural environment. 


     The term "rolling stock or other conveyances" was not included
in the definition of facility in the proposed rule. However,
commenters raised questions about the applicability of this part to
places of public accommodation operated in mobile facilities (such
as cruise ships, floating restaurants, or mobile health units). 
Those places of public accommodation are covered under this part,
and would be included in the definition of "facility."  Thus the
requirements of subparts B and C would apply to those places of
public accommodation.  For example, a covered entity could not
discriminate on the basis of disability in the full and equal
enjoyment of the facilities ({36.201).  Similarly, a cruise line
could not apply eligibility criteria to potential passengers in a
manner that would screen out individuals with disabilities, unless
the criteria are "necessary," as provided in {36.301.

     However, standards for new construction and alterations of
such facilities are not yet included in the Americans with
Disabilities Act Accessibility Guidelines for Buildings and
Facilities (ADAAG) adopted by {36.406 and incorporated in Appendix
A.  The Department therefore will not interpret the new
construction and alterations provisions of subpart D to apply to
the types of facilities discussed here, pending further development
of specific requirements.  

     Requirements pertaining to accessible transportation services
provided by public accommodations are included in {36.310 of this
part; standards pertaining to accessible vehicles will be issued by
the Secretary of Transportation pursuant to section 306 of the Act,
and will be codified at 49 CFR Part 37.  

     A public accommodation has obligations under this rule with
respect to a cruise ship to the extent that its operations are
subject to the laws of the United States.  

     The definition of "facility" only includes the site over which
the private entity may exercise control or on which a place of
public accommodation or a commercial facility is located.  It does
not include, for example, adjacent roads or walks controlled by a
public entity that is not subject to this part.  Public entities
are subject to the requirements of title II of the Act.  The
Department's regulation implementing title II, which will be
codified at 28 CFR Part 35, addresses the obligations of public
entities to ensure accessibility by providing curb ramps at
pedestrian walkways.

     "Illegal use of drugs."  The definition of "illegal use of
drugs" is taken from section 510(d)(1) of the Act and clarifies
that the term includes the illegal use of one or more drugs. 

     "Individual with a disability" means a person who has a
disability but does not include an individual who is currently
illegally using drugs, when the public accommodation acts on the
basis of such use.  The phrase "current illegal use of drugs" is
explained in the preamble to {36.209.

     "Place of public accommodation."  The term "place of public
accommodation" is an adaptation of the statutory definition of
"public accommodation" in section 301(7) of the ADA and appears as
an element of the regulatory definition of public accommodation. 
The final rule defines "place of public accommodation" as a
facility, operated by a private entity, whose operations affect
commerce and fall within at least one of 12 specified categories. 
The term "public accommodation," on the other hand, is reserved by
the final rule for the private entity that owns, leases (or leases
to), or operates a place of public accommodation.  It is the public
accommodation, and not the place of public accommodation, that is
subject to the regulation's nondiscrimination requirements. 
Placing the obligation not to discriminate on the public
accommodation, as defined in the rule, is consistent with section
302(a) of the ADA, which places the obligation not to discriminate
on any person who owns, leases (or leases to), or operates a place
of public accommodation.  

     Facilities operated by government agencies or other public
entities as defined in this section do not qualify as places of
public accommodation.  The actions of public entities are governed
by title II of the ADA and will be subject to regulations issued by
the Department of Justice under that title.  The receipt of
government assistance by a private entity does not by itself
preclude a facility from being considered as a place of public
accommodation.

     The definition of place of public accommodation incorporates
the 12 categories of facilities represented in the statutory
definition of public accommodation in section 301(7) of the ADA:

     1.  Places of lodging.

     2.  Establishments serving food or drink.

     3.  Places of exhibition or entertainment.

     4.  Places of public gathering.

     5.  Sales or rental establishments.

     6.  Service establishments.

     7.  Stations used for specified public transportation.

     8.  Places of public display or collection.

     9.  Places of recreation.

    10.  Places of education.

    11.  Social service center establishments.

    12.  Places of exercise or recreation.

     In order to be a place of public accommodation, a facility
must be operated by a private entity, its operations must affect
commerce, and it must fall within one of these 12 categories. 
While the list of categories is exhaustive, the representative
examples of facilities within each category are not.  Within each
category only a few examples are given.  The category of social
service center establishments would include not only the types of
establishments listed, day care centers, senior citizen centers,
homeless shelters, food banks, adoption agencies, but also
establishments such as substance abuse treatment centers, rape
crisis centers, and halfway houses.  As another example, the
category of sales or rental establishments would include an
innumerable array of facilities that would sweep far beyond the few
examples given in the regulation.  For example, other retail or
wholesale establishments selling or renting items, such as
bookstores, videotape rental stores, car rental establishments, pet
stores, and jewelry stores would also be covered under this
category, even though they are not specifically listed.

     Several commenters requested clarification as to the coverage
of wholesale establishments under the category of "sales or rental
establishments."  The Department intends for wholesale
establishments to be covered under this category as places of
public accommodation except in cases where they sell exclusively to
other businesses and not to individuals.  For example, a company
that grows food produce and supplies its crops exclusively to food
processing corporations on a wholesale basis does not become a
public accommodation because of these transactions.  If this
company operates a road side stand where its crops are sold to the
public, the road side stand would be a sales establishment covered
by the ADA.  Conversely, a sales establishment that markets its
goods as "wholesale to the public" and sells to individuals would
not be exempt from ADA coverage despite its use of the word
"wholesale" as a marketing technique.

     Of course, a company that operates a place of public
accommodation is subject to this part only in the operation of that
place of public accommodation.  In the example given above, the
wholesale produce company that operates a road side stand would be
a public accommodation only for the purposes of the operation of
that stand.  The company would be prohibited from discriminating on
the basis of disability in the operation of the road side stand,
and it would be required to remove barriers to physical access to
the extent that it is readily achievable to do so (see {36.304);
however, in the event that it is not readily achievable to remove
barriers, for example, by replacing a gravel surface or regrading
the area around the stand to permit access by persons with mobility
impairments, the company could meet its obligations through
alternative methods of making its goods available, such as
delivering produce to a customer in his or her car (see {36.305). 
The concepts of readily achievable barrier removal and alternatives
to barrier removal are discussed further in the preamble discussion
of {{36.304 and 36.305.

     Even if a facility does not fall within one of the 12
categories, and therefore does not qualify as a place of public
accommodation, it still may be a commercial facility as defined in
{36.104 and be subject to the new construction and alterations
requirements of subpart D.   

     A number of commenters questioned the treatment of residential
hotels and other residential facilities in the Department's
proposed rule.  These commenters were essentially seeking
resolution of the relationship between the Fair Housing Act and the
ADA concerning facilities that are both residential in nature and
engage in activities that would cause them to be classified as
"places of public accommodation" under the ADA.  The ADA's express
exemption relating to the Fair Housing Act applies only to
"commercial facilities" and not to "places of public
accommodation."  

     A facility whose operations affect interstate commerce is a
place of public accommodation for purposes of the ADA to the extent
that its operations include those types of activities engaged in or
services provided by the facilities contained on the list of 12
categories in section 301(7) of the ADA.  Thus, a facility that
provides social services would be considered a "social service
center establishment."  Similarly, the category "places of lodging"
would exclude solely residential facilities because the nature of
a place of lodging contemplates the use of the facility for short-
term stays.  

     Many facilities, however, are mixed use facilities.  For
example, in a large hotel that has a separate residential apartment
wing, the residential wing would not be covered by the ADA because
of the nature of the occupancy of that part of the facility.  This
residential wing would, however, be covered by the Fair Housing
Act.  The separate nonresidential accommodations in the rest of the
hotel would be a place of lodging, and thus a public accommodation
subject to the requirements of this final rule.  If a hotel allows
both residential and short-term stays, but does not allocate space
for these different uses in separate, discrete units, both the ADA
and the Fair Housing Act may apply to the facility.  Such
determinations will need to be made on a case-by-case basis.  Any
place of lodging of the type described in paragraph (1) of the
definition of place of public accommodation and that is an
establishment located within a building that contains not more than
five rooms for rent or hire and is actually occupied by the
proprietor of the establishment as his or her residence is not
covered by the ADA.  (This exclusion from coverage does not apply
to other categories of public accommodations, for example,
professional offices or homeless shelters, that are located in a
building that is also occupied as a private residence.)

     A number of commenters noted that the term "residential hotel"
may also apply to a type of hotel commonly known as a "single room
occupancy hotel."  Although such hotels or portions of such hotels
may fall under the Fair Housing Act when operated or used as long-
term residences, they are also considered "places of lodging" under
the ADA when guests of such hotels are free to use them on a short-
term basis.  In addition, "single room occupancy hotels" may
provide social services to their guests, often through the
operation of Federal or State grant programs.  In such a situation,
the facility would be considered a "social service center
establishment" and thus covered by the ADA as a place of public
accommodation, regardless of the length of stay of the occupants. 


     A similar analysis would also be applied to other residential
facilities that provide social services, including homeless
shelters, shelters for people seeking refuge from domestic
violence, nursing homes, residential care facilities, and other
facilities where persons may reside for varying lengths of time. 
Such facilities should be analyzed under the Fair Housing Act to
determine the application of that statute.  The ADA, however,
requires a separate and independent analysis.  For example, if the
facility, or a portion of the facility, is intended for or permits
short-term stays, or if it can appropriately be categorized as a
service establishment or as a social service establishment, then
the facility or that portion of the facility used for the covered
purpose is a place of public accommodation under the ADA.  For
example, a homeless shelter that is intended and used only for
long-term residential stays and that does not provide social
services to its residents would not be covered as a place of public
accommodation.  However, if this facility permitted short-term
stays or provided social services to its residents, it would be
covered under the ADA either as a "place of lodging" or as a
"social service center establishment," or as both.

     A private home, by itself, does not fall within any of the 12
categories.  However, it can be covered as a place of public
accommodation to the extent that it is used as a facility that
would fall within one of the 12 categories.  For example, if a
professional office of a dentist, doctor, or psychologist is
located in a private home, the portion of the home dedicated to
office use (including areas used both for the residence and the
office, e.g., the entrance to the home that is also used as the
entrance to the professional office) would be considered a place of
public accommodation.  Places of public accommodation located in
residential facilities are specifically addressed in {36.207.

     If a tour of a commercial facility that is not otherwise a
place of public accommodation, such as, for example, a factory or
a movie studio production set, is open to the general public, the
route followed by the tour is a place of public accommodation and
the tour must be operated in accordance with the rule's
requirements for public accommodations.  The place of public
accommodation defined by the tour does not include those portions
of the commercial facility that are merely viewed from the tour
route.  Hence, the barrier removal requirements of {36.304 only
apply to the physical route followed by the tour participants and
not to work stations or other areas that are merely adjacent to, or
within view of, the tour route.  If the tour is not open to the
general public, but rather is conducted, for example, for selected
business colleagues, partners, customers, or consultants, the tour
route is not a place of public accommodation and the tour is not
subject to the requirements for public accommodations.

     Public accommodations that receive Federal financial
assistance are subject to the requirements of section 504 of the
Rehabilitation Act as well as the requirements of the ADA.

     Private schools, including elementary and secondary schools,
are covered by the rule as places of public accommodation.  The
rule itself, however, does not require a private school to provide
a free appropriate education or develop an individualized education
program in accordance with regulations of the Department of
Education implementing section 504 of the Rehabilitation Act of
1973, as amended (34 CFR Part 104), and regulations implementing
the Individuals with Disabilities Education Act (34 CFR Part 300). 
The receipt of Federal assistance by a private school, however,
would trigger application of the Department of Education's
regulations to the extent mandated by the particular type of
assistance received.

     "Private club."  The term "private club" is defined in
accordance with section 307 of the ADA as a private club or
establishment exempted from coverage under title II of the Civil
Rights Act of 1964.  Title II of the 1964 Act exempts any "private
club or other establishment not in fact open to the public, except
to the extent that the facilities of such establishment are made
available to the customers or patrons of [a place of public
accommodation as defined in title II]."  The rule, therefore, as
reflected in {36.102(e) of the application section, limits the
coverage of private clubs accordingly.  The obligations of a
private club that rents space to any other private entity for the
operation of a place of public accommodation are discussed further
in connection with {36.201.

     In determining whether a private entity qualifies as a private
club under title II, courts have considered such factors as the
degree of member control of club operations, the selectivity of the
membership selection process, whether substantial membership fees
are charged, whether the entity is operated on a nonprofit basis,
the extent to which the facilities are open to the public, the
degree of public funding, and whether the club was created
specifically to avoid compliance with the Civil Rights Act.  See,
e.g., Tillman v. Wheaton-Haven Recreation Ass'n, 4l0 U.S. 43l
(l973); Daniel v. Paul, 395 U.S. 298 (l969); Olzman v. Lake Hills
Swim Club, Inc., 495 F.2d l333 (2d Cir. l974); Anderson v. Pass
Christian Isles Golf Club, Inc., 488 F.2d 855 (5th Cir. l974);
Smith v. YMCA, 462 F.2d 634 (5th Cir. l972); Stout v. YMCA, 404
F.2d 687 (5th Cir. l968); United States v. Richberg, 398 F.2d 523
(5th Cir. l968); Nesmith v. YMCA, 397 F.2d 96 (4th Cir. l968);
United States v. Lansdowne Swim Club, 7l3 F. Supp. 785 (E.D. Pa.
l989); Durham v. Red Lake Fishing and Hunting Club, Inc., 666 F.
Supp. 954 (W.D. Tex. l987); New York v. Ocean Club, Inc., 602 F.
Supp. 489 (E.D.N.Y. l984); Brown v. Loudoun Golf and Country Club,
Inc., 573 F. Supp. 399 (E.D. Va. l983); United States v. Trustees
of Fraternal Order of Eagles, 472 F. Supp. ll74 (E.D. Wis. l979);
Cornelius v. Benevolent Protective Order of Elks, 382 F. Supp. ll82
(D. Conn. l974).

     "Private entity."  The term "private entity" is defined as any
individual or entity other than a public entity.  It is used as
part of the definition of "public accommodation" in this section. 

     The definition adds "individual" to the statutory definition
of private entity (see section 301(6) of the ADA).  This addition
clarifies that an individual may be a private entity and,
therefore, may be considered a public accommodation if he or she
owns, leases (or leases to), or operates a place of public
accommodation.  The explicit inclusion of individuals under the
definition of private entity is consistent with section 302(a) of
the ADA, which broadly prohibits discrimination on the basis of
disability by any person who owns, leases (or leases to), or
operates a place of public accommodation.  

     "Public accommodation."  The term "public accommodation" means
a private entity that owns, leases (or leases to), or operates a
place of public accommodation.  The regulatory term, "public
accommodation," corresponds to the statutory term, 
"person," in section 302(a) of the ADA.  The ADA prohibits
discrimination "by any person who owns, leases (or leases to), or
operates a place of public accommodation."  The text of the
regulation consequently places the ADA's nondiscrimination
obligations on "public accommodations" rather than on "persons" or
on "places of public accommodation."  

     As stated in {36.102(b)(2), the requirements of subparts B and
C obligate a public accommodation only with respect to the
operations of a place of public accommodation.  A public
accommodation must also meet the requirements of subpart D with
respect to facilities used as, or designed or constructed for use
as, places of public accommodation or commercial facilities.

     "Public entity."  The term "public entity" is defined in
accordance with section 201(1) of the ADA as any State or local
government; any department, agency, special purpose district, or
other instrumentality of a State or States or local government; and
the National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger
Service Act).  It is used in the definition of "private entity" in
{36.104.  Public entities are excluded from the definition of
private entity and therefore cannot qualify as public
accommodations under this regulation.  However, the actions of
public entities are covered by title II of the ADA and by the
Department's title II regulations codified at 28 CFR Part 35.

     "Qualified interpreter."  The Department received substantial
comment regarding the lack of a definition of "qualified
interpreter."  The proposed rule defined auxiliary aids and
services to include the statutory term, "qualified interpreters"
({36.303(b)), but did not define that term.  Section 36.303
requires the use of a qualified interpreter where necessary to
achieve effective communication, unless an undue burden or
fundamental alteration would result.  Commenters stated that a lack
of guidance on what the term means would create confusion among
those trying to secure interpreting services and often result in
less than effective communication.

     Many commenters were concerned that, without clear guidance on
the issue of "qualified" interpreter, the rule would be interpreted
to mean "available, rather than qualified" interpreters.  Some
claimed that few public accommodations would understand the
difference between a qualified interpreter and a person who simply
knows a few signs or how to fingerspell.

     In order to clarify what is meant by "qualified interpreter"
the Department has added a definition of the term to the final
rule.  A qualified interpreter means an interpreter who is able to
interpret effectively, accurately, and impartially both receptively
and expressively, using any necessary specialized vocabulary.  This
definition focuses on the actual ability of the interpreter in a
particular interpreting context to facilitate effective
communication between the public accommodation and the individual
with disabilities.

     Public comment also revealed that public accommodations have
at times asked persons who are deaf to provide family members or
friends to interpret.  In certain circumstances, notwithstanding
that the family member or friend is able to interpret or is a
certified interpreter, the family member or friend may not be
qualified to render the necessary interpretation because of factors
such as emotional or personal involvement or considerations of
confidentiality that may adversely affect the ability to interpret
"effectively, accurately, and impartially."

     "Readily achievable."  The definition of "readily achievable"
follows the statutory definition of that term in section 301(9) of
the ADA.  Readily achievable means easily accomplishable and able
to be carried out without much difficulty or expense.  The term is
used as a limitation on the obligation to remove barriers under
{{36.304(a), 36.305(a), 36.308(a), and 36.310(b).  Further
discussion of the meaning and application of the term "readily
achievable" may be found in the preamble section for {36.304.

     The definition lists factors to be considered in determining
whether barrier removal is readily achievable in any particular
circumstance.  A significant number of commenters objected to
{36.306 of the proposed rule, which listed identical factors to be
considered for determining "readily achievable" and "undue burden"
together in one section.  They asserted that providing a
consolidated section blurred the distinction between the level of
effort required by a public accommodation under the two standards. 
The readily achievable standard is a "lower" standard than the
"undue burden" standard in terms of the level of effort required,
but the factors used in determining whether an action is readily
achievable or would result in an undue burden are identical (see
Education and Labor report at 109).  Although the preamble to the
proposed rule clearly delineated the relationship between the two
standards, to eliminate any confusion the Department has deleted
{36.306 of the proposed rule.  That section, in any event, as other
commenters noted, had merely repeated the lists of factors
contained in the definitions of readily achievable and undue
burden.

     The list of factors included in the definition is derived from
section 301(9) of the ADA.  It reflects the congressional intention
that a wide range of factors be considered in determining whether
an action is readily achievable.  It also takes into account that
many local facilities are owned or operated by parent corporations
or entities that conduct operations at many different sites.  This
section makes clear that, in some instances, resources beyond those
of the local facility where the barrier must be removed may be
relevant in determining whether an action is readily achievable. 
One must also evaluate the degree to which any parent entity has
resources that may be allocated to the local facility.

     The statutory list of factors in section 30l(9) of the Act
uses the term "covered entity" to refer to the larger entity of
which a particular facility may be a part.  "Covered entity" is not
a defined term in the ADA and is not used consistently throughout
the Act.  The definition, therefore, substitutes the term "parent
entity" in place of "covered entity" in paragraphs (3), (4), and
(5) when referring to the larger private entity whose overall
resources may be taken into account.  This usage is consistent with
the House Judiciary Committee's use of the term "parent company" to
describe the larger entity of which the local facility is a part
(H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 3, at 40-4l, 54-55
(1990) [hereinafter "Judiciary report"]).

     A number of commenters asked for more specific guidance as to
when and how the resources of a parent corporation or entity are to
be taken into account in determining what is readily achievable. 
The Department believes that this complex issue is most
appropriately resolved on a case-by-case basis.  As the comments
reflect, there is a wide variety of possible relationships between
the site in question and any parent corporation or other entity. 
It would be unwise to posit legal ramifications under the ADA of
even generic relationships (e.g., banks involved in foreclosures or
insurance companies operating as trustees or in other similar
fiduciary relationships), because any analysis will depend so
completely on the detailed fact situations and the exact nature of
the legal relationships involved.  The final rule does, however,
reorder the factors to be considered.  This shift and the addition
of the phrase "if applicable" make clear that the line of inquiry
concerning factors will start at the site involved in the action
itself.  This change emphasizes that the overall resources, size,
and operations of the parent corporation or entity should be
considered to the extent appropriate in light of "the geographic
separateness, and the administrative or fiscal relationship of the
site or sites in question to any parent corporation or entity."

     Although some commenters sought more specific numerical
guidance on the definition of readily achievable, the Department
has declined to establish in the final rule any kind of numerical
formula for determining whether an action is readily achievable. 
It would be difficult to devise a specific ceiling on compliance
costs that would take into account the vast diversity of
enterprises covered by the ADA's public accommodations requirements
and the economic situation that any particular entity would find
itself in at any moment.  The final rule, therefore, implements the
flexible case-by-case approach chosen by Congress.  

     A number of commenters requested that security considerations
be explicitly recognized as a factor in determining whether a
barrier removal action is readily achievable.  The Department
believes that legitimate safety requirements, including crime
prevention measures, may be taken into account so long as they are
based on actual risks and are necessary for safe operation of the
public accommodation.  This point has been included in the
definition.

     Some commenters urged the Department not to consider acts of
barrier removal in complete isolation from each other in
determining whether they are readily achievable.  The Department
believes that it is appropriate to consider the cost of other
barrier removal actions as one factor in determining whether a
measure is readily achievable.

     "Religious entity."  The term "religious entity" is defined in
accordance with section 307 of the ADA as a religious organization
or entity controlled by a religious organization, including a place
of worship.  Section 36.102(e) of the rule states that the rule
does not apply to any religious entity.

     The ADA's exemption of religious organizations and religious
entities controlled by religious organizations is very broad,
encompassing a wide variety of situations.  Religious organizations
and entities controlled by religious organizations have no
obligations under the ADA.  Even when a religious organization
carries out activities that would otherwise make it a public
accommodation, the religious organization is exempt from ADA
coverage.  Thus, if a church itself operates a day care center, a
nursing home, a private school, or a diocesan school system, the
operations of the center, home, school, or schools would not be
subject to the requirements of the ADA or this part.  The religious
entity would not lose its exemption merely because the services
provided were open to the general public.  The test is whether the
church or other religious organization operates the public
accommodation, not which individuals receive the public
accommodation's services.

     Religious entities that are controlled by religious
organizations are also exempt from the ADA's requirements.  Many
religious organizations in the United States use lay boards and
other secular or corporate mechanisms to operate schools and an
array of social services.  The use of a lay board or other
mechanism does not itself remove the ADA's religious exemption. 
Thus, a parochial school, having religious doctrine in its
curriculum and sponsored by a religious order, could be exempt
either as a religious organization or as an entity controlled by a
religious organization, even if it has a lay board.  The test
remains a factual one -- whether the church or other religious
organization controls the operations of the school or of the
service or whether the school or service is itself a religious
organization.

     Although a religious organization or a religious entity that
is controlled by a religious organization has no obligations under
the rule, a public accommodation that is not itself a religious
organization, but that operates a place of public accommodation in
leased space on the property of a religious entity, which is not a
place of worship, is subject to the rule's requirements if it is
not under control of a religious organization.  When a church rents
meeting space, which is not a place of worship, to a local
community group or to a private, independent day care center, the
ADA applies to the activities of the local community group and day
care center if a lease exists and consideration is paid.

     "Service animal."  The term "service animal" encompasses any
guide dog, signal dog, or other animal individually trained to
provide assistance to an individual with a disability.  The term is
used in {36.302(c), which requires public accommodations generally
to modify policies, practices, and procedures to accommodate the
use of service animals in places of public accommodation.

     "Specified public transportation."  The definition of
"specified public transportation" is identical to the statutory
definition in section 301(10) of the ADA.  The term means
transportation by bus, rail, or any other conveyance (other than by
aircraft) that provides the general public with general or special
service (including charter service) on a regular and continuing
basis.  It is used in category (7) of the definition of "place of
public accommodation," which includes stations used for specified
public transportation.  

     The effect of this definition, which excludes transportation
by aircraft, is that it excludes privately operated airports from
coverage as places of public accommodation.  However, places of
public accommodation located within airports would be covered by
this part.  Airports that are operated by public entities are
covered by title II of the ADA and, if they are operated as part of
a program receiving Federal financial assistance, by section 504 of
the Rehabilitation Act.  Privately operated airports are similarly
covered by section 504 if they are operated as part of a program
receiving Federal financial assistance.  The operations of any
portion of any airport that are under the control of an air carrier
are covered by the Air Carrier Access Act.  In addition, airports
are covered as commercial facilities under this rule.

     "State."  The definition of "State" is identical to the
statutory definition in section 3(3) of the ADA.  The term is used
in the definitions of "commerce" and "public entity" in {36.104.

     "Undue burden."  The definition of "undue burden" is analogous
to the statutory definition of "undue hardship" in employment under
section 101(10) of the ADA.  The term undue burden means
"significant difficulty or expense" and serves as a limitation on
the obligation to provide auxiliary aids and services under {36.303
and {{36.309(b)(3) and (c)(3).  Further discussion of the meaning
and application of the term undue burden may be found in the
preamble discussion of {36.303.

     The definition lists factors considered in determining whether
provision of an auxiliary aid or service in any particular
circumstance would result in an undue burden.  The factors to be
considered in determining whether an action would result in an
undue burden are identical to those to be considered in determining
whether an action is readily achievable.  However, "readily
achievable" is a lower standard than "undue burden" in that it
requires a lower level of effort on the part of the public
accommodation (see Education and Labor report at 109).

     Further analysis of the factors to be considered in
determining undue burden may be found in the preamble discussion of
the definition of the term "readily achievable."

Subpart B -- General Requirements

     Subpart B includes general prohibitions restricting a public
accommodation from discriminating against people with disabilities
by denying them the opportunity to benefit from goods or services,
by giving them unequal goods or services, or by giving them
different or separate goods or services.  These general
prohibitions are patterned after the basic, general prohibitions
that exist in other civil rights laws that prohibit discrimination
on the basis of race, sex, color, religion, or national origin.  

Section 36.20l  General.

     Section 36.201(a) contains the general rule that prohibits
discrimination on the basis of disability in the full and equal
enjoyment of goods, services, facilities, privileges, advantages,
and accommodations of any place of public accommodation.

     Full and equal enjoyment means the right to participate and to
have an equal opportunity to obtain the same results as others to
the extent possible with such accommodations as may be required by
the Act and these regulations.  It does not mean that an individual
with a disability must achieve an identical result or level of
achievement as persons without a disability.  For example, an
exercise class cannot exclude a person who uses a wheelchair
because he or she cannot do all of the exercises and derive the
same result from the class as persons without a disability.

     Section 302(a) of the ADA states that the prohibition against
discrimination applies to "any person who owns, leases (or leases
to), or operates a place of public accommodation," and this
language is reflected in {36.20l(a).  The coverage is quite
extensive and would include sublessees, management companies, and
any other entity that owns, leases, leases to, or operates a place
of public accommodation, even if the operation is only for a short
time.

     The first sentence of paragraph (b) of {36.201 reiterates the
general principle that both the landlord that owns the building
that houses the place of public accommodation, as well as the
tenant that owns or operates the place of public accommodation, are
public accommodations subject to the requirements of this part. 
Although the statutory language could be interpreted as placing
equal responsibility on all private entities, whether lessor,
lessee, or operator of a public accommodation, the committee
reports suggest that liability may be allocated.  Section 36.201(b)
of that section of the proposed rule attempted to allocate
liability in the regulation itself.  Paragraph (b)(2) of that
section made a specific allocation of liability for the obligation
to take readily achievable measures to remove barriers, and
paragraph (b)(3) made a specific allocation for the obligation to
provide auxiliary aids.

     Numerous commenters pointed out that these allocations would
not apply in all situations.  Some asserted that paragraph (b)(2)
of the proposed rule only addressed the situation when a lease gave
the tenant the right to make alterations with permission of the
landlord, but failed to address other types of leases, e.g., those
that are silent on the right to make alterations, or those in which
the landlord is not permitted to enter a tenant's premises to make
alterations.  Several commenters noted that many leases contain
other clauses more relevant to the ADA than the alterations clause. 
For example, many leases contain a "compliance clause," a clause
which allocates responsibility to a particular party for compliance
with all relevant Federal, State, and local laws.  Many commenters
pointed out various types of relationships that were left
unaddressed by the regulation, e.g., sale and leaseback
arrangements where the landlord is a financial institution with no
control or responsibility for the building; franchises; subleases;
and management companies which, at least in the hotel industry,
often have control over operations but are unable to make
modifications to the premises.

     Some commenters raised specific questions as to how the
barrier removal allocation would work as a practical matter. 
Paragraph (b)(2) of the proposed rule provided that the burden of
making readily achievable modifications within the tenant's place
of public accommodation would shift to the landlord when the
modifications were not readily achievable for the tenant or when
the landlord denied a tenant's request for permission to make such
modifications.  Commenters noted that the rule did not specify
exactly when the burden would actually shift from tenant to
landlord and whether the landlord would have to accept a tenant's
word that a particular action is not readily achievable.  Others
questioned if the tenant should be obligated to use alternative
methods of barrier removal before the burden shifts.  In light of
the fact that readily achievable removal of barriers can include
such actions as moving of racks and displays, some commenters
doubted the appropriateness of requiring a landlord to become
involved in day-to-day operations of its tenants' businesses.

     The Department received widely differing comments in response
to the preamble question asking whether landlord and tenant
obligations should vary depending on the length of time remaining
on an existing lease.  Many suggested that tenants should have no
responsibilities in "shorter leases," which commenters defined as
ranging anywhere from 90 days to three years.  Other commenters
pointed out that the time remaining on the lease should not be a
factor in the rule's allocation of responsibilities, but is
relevant in determining what is readily achievable for the tenant. 
The Department agrees with this latter approach and will interpret
the rule in that manner.

     In recognition of the somewhat limited applicability of the
allocation scheme contained in the proposed rule, paragraphs (b)(2)
and (b)(3) have been deleted from the final rule.  The Department
has substituted instead a statement that allocation of
responsibility as between the parties for taking readily achievable
measures to remove barriers and to provide auxiliary aids and
services both in common areas and within places of public
accommodation may be determined by the lease or other contractual
relationships between the parties.  The ADA was not intended to
change existing landlord/tenant responsibilities as set forth in
the lease.  By deleting specific provisions from the rule, the
Department gives full recognition to this principle.  As between
the landlord and tenant, the extent of responsibility for
particular obligations may be, and in many cases probably will be,
determined by contract.

     The suggested allocation of responsibilities contained in the
proposed rule may be used if appropriate in a particular situation. 
Thus, the landlord would generally be held responsible for making
readily achievable changes and providing auxiliary aids and
services in common areas and for modifying policies, practices, or
procedures applicable to all tenants, and the tenant would
generally be responsible for readily achievable changes, provision
of auxiliary aids, and modification of policies within its own
place of public accommodation.

     Many commenters objected to the proposed rule's allocation of
responsibility for providing auxiliary aids and services solely to
the tenant, pointing out that this exclusive allocation may not be
appropriate in the case of larger public accommodations that
operate their businesses by renting space out to smaller public
accommodations.  For example, large theaters often rent to smaller
traveling companies and hospitals often rely on independent
contractors to provide childbirth classes.  Groups representing
persons with disabilities objected to the proposed rule because, in
their view, it permitted the large theater or hospital to evade ADA
responsibilities by leasing to independent smaller entities.  They
suggested that these types of public accommodations are not really
landlords because they are in the business of providing a service,
rather than renting space, as in the case of a shopping center or
office building landlord.  These commenters believed that
responsibility for providing auxiliary aids should shift to the
landlord, if the landlord relies on a smaller public accommodation
or independent contractor to provide services closely related to
those of the larger public accommodation, and if the needed
auxiliary aids prove to be an undue burden for the smaller public
accommodation.  The final rule no longer lists specific allocations
to specific parties but, rather, leaves allocation of
responsibilities to the lease negotiations.  Parties are,
therefore, free to allocate the responsibility for auxiliary aids.

     Section 36.201(b)(4) of the proposed rule, which provided that
alterations by a tenant on its own premises do not trigger a path
of travel obligation on the landlord, has been moved to {36.403(d)
of the final rule.

     An entity that is not in and of itself a public accommodation,
such as a trade association or performing artist, may become a
public accommodation when it leases space for a conference or
performance at a hotel, convention center, or stadium.  For an
entity to become a public accommodation when it is the lessee of
space, however, the Department believes that consideration in some
form must be given.  Thus, a Boy Scout troop that accepts donated
space does not become a public accommodation because the troop has
not "leased" space, as required by the ADA.

     As a public accommodation, the trade association or performing
artist will be responsible for compliance with this part.  Specific
responsibilities should be allocated by contract, but, generally,
the lessee should be responsible for providing auxiliary aids and
services (which could include interpreters, Braille programs, etc.)
for the participants in its conference or performance as well as
for assuring that displays are accessible to individuals with
disabilities.

     Some commenters suggested that the rule should allocate
responsibilities for areas other than removal of barriers and
auxiliary aids.  The final rule leaves allocation of all areas to
the lease negotiations.  However, in general landlords should not
be given responsibility for policies a tenant applies in operating
its business, if such policies are solely those of the tenant. 
Thus, if a restaurant tenant discriminates by refusing to seat a
patron, it would be the tenant, and not the landlord, who would be
responsible, because the discriminatory policy is imposed solely by
the tenant and not by the landlord.  If, however, a tenant refuses
to modify a "no pets" rule to allow service animals in its
restaurant because the landlord mandates such a rule, then both the
landlord and the tenant would be liable for violation of the ADA
when a person with a service dog is refused entrance.  The
Department wishes to emphasize, however, that the parties are free
to allocate responsibilities in any way they choose.

     Private clubs are also exempt from the ADA.  However,
consistent with title II of the Civil Rights Act (42 U.S.C.
2000a(e), a private club is considered a public accommodation to
the extent that "the facilities of such establishment are made
available to the customers or patrons" of a place of public
accommodation.  Thus, if a private club runs a day care center that
is open exclusively to its own members, the club, like the church
in the example above, would have no responsibility for compliance
with the ADA.  Nor would the day care center have any
responsibilities because it is part of the private club exempt from
the ADA.

     On the other hand, if the private club rents to a day care
center that is open to the public, then the private club would have
the same obligations as any other public accommodation that
functions as a landlord with respect to compliance with title III
within the day care center.  In such a situation, both the private
club that "leases to" a public accommodation and the public
accommodation lessee (the day care center) would be subject to the
ADA.  This same principle would apply if the private club were to
rent to, for example, a bar association, which is not generally a
public accommodation but which, as explained above, becomes a
public accommodation when it leases space for a conference.

Section 36.202  Activities.

     Section 36.202 sets out the general forms of discrimination
prohibited by title III of the ADA.  These general prohibitions are
further refined by the specific prohibitions in subpart C.
Section 36.213 makes clear that the limitations on the ADA's
requirements contained in subpart C, such as "necessity"
({36.301(a)) and "safety" ({36.301(b)), are applicable to the
prohibitions in {36.202.  Thus, it is unnecessary to add these
limitations to {36.202 as has been requested by some commenters. 
In addition, the language of {36.202 very closely tracks the
language of section 302(b)(1)(A) of the Act, and that statutory
provision does not expressly contain these limitations.

     Deny participation -- Section 36.202(a) provides that it is
discriminatory to deny a person with a disability the right to
participate in or benefit from the goods, services, facilities,
privileges, advantages, or accommodations of a place of public
accommodation.  

     A public accommodation may not exclude persons with
disabilities on the basis of disability for reasons other than
those specifically set forth in this part.  For example, a public
accommodation cannot refuse to serve a person with a disability
because its insurance company conditions coverage or rates on the
absence of persons with disabilities.  This is a frequent basis of
exclusion from a variety of community activities and is prohibited
by this part.

     Unequal benefit -- Section 36.202(b) prohibits services or
accommodations that are not equal to those provided others.  For
example, persons with disabilities must not be limited to certain
performances at a theater.

     Separate benefit -- Section 36.202(c) permits different or
separate benefits or services only when necessary to provide
persons with disabilities opportunities as effective as those
provided others.  This paragraph permitting separate benefits "when
necessary" should be read together with {36.203(a), which requires
integration in "the most integrated setting appropriate to the
needs of the individual."  The preamble to that section provides
further guidance on separate programs.  Thus, this section would
not prohibit the designation of parking spaces for persons with
disabilities.

     Each of the three paragraphs (a)-(c) prohibits discrimina-
tion against an individual or class of individuals "either directly
or through contractual, licensing, or other arrangements."  The
intent of the contractual prohibitions of these paragraphs is to
prohibit a public accommodation from doing indirectly, through a
contractual relationship, what it may not 
do directly.  Thus, the "individual or class of individuals"
referenced in the three paragraphs is intended to refer to the
clients and customers of the public accommodation that entered into
a contractual arrangement.  It is not intended to encompass the
clients or customers of other entities.  A public accommodation,
therefore, is not liable under this provision for discrimination
that may be practiced by those with whom it has a contractual
relationship, when that discrimination is not directed against its
own clients or customers.  For example, if an amusement park
contracts with a food service company to operate its restaurants at
the park, the amusement park is not responsible for other
operations of the food service company that do not involve clients
or customers of the amusement park.  Section 36.202(d) makes this
clear by providing that the term "individual or class of
individuals" refers to the clients or customers of the public
accommodation that enters into the contractual, licensing, or other
arrangement.

Section 36.203  Integrated settings.

     Section 36.203 addresses the integration of persons with
disabilities.  The ADA recognizes that the provision of goods and
services in an integrated manner is a fundamental tenet of
nondiscrimination on the basis of disability.  Providing segregated
accommodations and services relegates persons with disabilities to
the status of second-class citizens.  For example, it would be a
violation of this provision to require persons with mental
disabilities to eat in the back room of a restaurant or to refuse
to allow a person with a disability the full use of a health spa
because of stereotypes about the person's ability to participate. 
Section 36.203(a) states that a public accommodation shall afford
goods, services, facilities, privileges, advantages, and
accommodations to an individual with a disability in the most
integrated setting appropriate to the needs of the individual. 
Section 36.203(b) specifies that, notwithstanding the existence of
separate or different programs or activities provided in accordance
with this section, an individual with a disability shall not be
denied the opportunity to participate in such programs or
activities that are not separate or different.  Section 306.203(c),
which is derived from section 50l(d) of the Americans with
Disabilities Act, states that nothing in this part shall be
construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit that he or she
chooses not to accept.  

     Taken together, these provisions are intended to prohibit
exclusion and segregation of individuals with disabilities and the
denial of equal opportunities enjoyed by others, based on, among
other things, presumptions, patronizing attitudes, fears, and
stereotypes about individuals with disabilities.  Consistent with
these standards, public accommodations are required to make
decisions based on facts applicable to individuals and not on the
basis of presumptions as to what a class of individuals with
disabilities can or cannot do. 

     Sections 36.203(b) and (c) make clear that individuals with
disabilities cannot be denied the opportunity to participate in
programs that are not separate or different.  This is an important
and overarching principle of the Americans with Disabilities Act. 
Separate, special, or different programs that are designed to
provide a benefit to persons with disabilities cannot be used to
restrict the participation of persons with disabilities in general,
integrated activities.

     For example, a person who is blind may wish to decline
participating in a special museum tour that allows persons to touch
sculptures in an exhibit and instead tour the exhibit at his or her
own pace with the museum's recorded tour.  It is not the intent of
this section to require the person who is blind to 
avail himself or herself of the special tour.  Modified
participation for persons with disabilities must be a choice, not
a requirement.

     Further, it would not be a violation of this section for an
establishment to offer recreational programs specially designed for
children with mobility impairments in those limited circumstances. 
However, it would be a violation of this section if the entity then
excluded these children from other recreational services made
available to nondisabled children, or required children with
disabilities to attend only designated programs.

     Many commenters asked that the Department clarify a public
accommodation's obligations within the integrated program when it
offers a separate program, but an individual with a disability
chooses not to participate in the separate program.  It is
impossible to make a blanket statement as to what level of
auxiliary aids or modifications are required in the integrated
program.  Rather, each situation must be assessed individually.  
Assuming the integrated program would be appropriate for a
particular individual, the extent to which that individual must be
provided with modifications will depend not only on what the
individual needs but also on the limitations set forth in subpart
C.  For example, it may constitute an undue burden for a particular
public accommodation, which provides a full-time interpreter in its
special guided tour for individuals with hearing impairments, to
hire an additional interpreter for those individuals who choose to
attend the integrated program.  The Department cannot identify
categorically the level of assistance or aid required in the
integrated program.  

     The preamble to the proposed rule contained a statement that
some interpreted as encouraging the continuation of separate
schools, sheltered workshops, special recreational programs, and
other similar programs.  It is important to emphasize that
{36.202(c) only calls for separate programs when such programs are
"necessary" to provide as effective an opportunity to individuals
with disabilities as to other individuals.  Likewise, {36.203(a)
only permits separate programs when a more integrated setting would
not be "appropriate."  Separate programs are permitted, then, in
only limited circumstances.  The sentence at issue has been deleted
from the preamble because it was too broadly stated and had been
erroneously interpreted as Departmental encouragement of separate
programs without qualification.

     The proposed rule's reference in {36.203(b) to separate
programs or activities provided in accordance with "this section"
has been changed to "this subpart" in recognition of the fact that
separate programs or activities may, in some limited circumstances,
be permitted not only by {36.203(a) but also by    {36.202(c).

     In addition, some commenters suggested that the individual
with the disability is the only one who can decide whether a
setting is "appropriate" and what the "needs" are.  Others
suggested that only the public accommodation can make these
determinations.  The regulation does not give exclusive
responsibility to either party.  Rather, the determinations are to
be made based on an objective view, presumably one which would take
into account views of both parties.

     Some commenters expressed concern that {36.203(c), which
states that nothing in the rule requires an individual with a
disability to accept special accommodations and services provided
under the ADA, could be interpreted to allow guardians of infants
or older people with disabilities to refuse medical treatment for
their wards.  Section 36.203(c) has been revised to make it clear
that paragraph (c) is inapplicable to the concern of the
commenters.  A new paragraph (c)(2) has been added stating that
nothing in the regulation authorizes the representative or guardian
of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual.  New paragraph
(c) clarifies that neither the ADA nor the regulation alters
current Federal law ensuring the rights of incompetent individuals
with disabilities to receive food, water, and medical treatment. 
See, e.g., Child Abuse Amendments of 1984 (42 U.S.C. 5106a(b)(10),
5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C 794);
Developmentally Disabled Assistance and Bill of Rights Act (42
U.S.C. 6042).

     Sections 36.203(c)(1) and (2) are based on section 501(d) of
the ADA.  Section 501(d) was designed to clarify that nothing in
the ADA requires individuals with disabilities to accept special
accommodations and services for individuals with disabilities that
may segregate them:

     The Committee added this section [501(d)] to clarify that
     nothing in the ADA is intended to permit discriminatory
     treatment on the basis of disability, even when such
     treatment is rendered under the guise of providing an
     accommodation, service, aid or benefit to the individual
     with disability.  For example, a blind individual may choose
     not to avail himself or herself of the right to go to the
     front of a line, even if a particular public accommodation
     has chosen to offer such a modification of a policy for
     blind individuals.  Or, a blind individual may choose to
     decline to participate in a special museum tour that allows
     persons to touch sculptures in an exhibit and instead tour
     the exhibits at his or her own pace with the museum's
     recorded tour.

(Judiciary report at 71-72.)  The Act is not to be construed to
mean that an individual with disabilities must accept special
accommodations and services for individuals with disabilities when
that individual chooses to participate in the regular services
already offered.  Because medical treatment, including treatment
for particular conditions, is not a special accommodation or
service for individuals with disabilities under section 501(d),
neither the Act nor this part provides affirmative authority to
suspend such treatment.  Section 501(d) is intended to clarify that
the Act is not designed to foster discrimination through mandatory
acceptance of special services when other alternatives are
provided; this concern does not reach to the provision of medical
treatment for the disabling condition itself.

     Section 36.213 makes clear that the limitations contained in
subpart C are to be read into subpart B.  Thus, the integration
requirement is subject to the various defenses contained in subpart
C, such as safety, if eligibility criteria are at issue
({36.30l(b)), or fundamental alteration and undue burden, if the
concern is provision of auxiliary aids ({36.303(a)).

Section 36.204  Administrative methods.

     Section 36.204 specifies that an individual or entity shall
not, directly, or through contractual or other arrangements,
utilize standards or criteria or methods of administration that
have the effect of discriminating on the basis of disability or
that perpetuate the discrimination of others who are subject to
common administrative control.  The preamble discussion of {36.301
addresses eligibility criteria in detail.

     Section 36.204 is derived from section 302(b)(1)(D) of the
Americans with Disabilities Act, and it uses the same language used
in the employment section of the ADA (section 102(b)(3)).  Both
sections incorporate a disparate impact standard to ensure the
effectiveness of the legislative mandate to end discrimination. 
This standard is consistent with the interpretation of section 504
by the U.S. Supreme Court in Alexander v. Choate, 469 U.S. 287
(1985).  The Court in Choate explained that members of Congress
made numerous statements during passage of section 504 regarding
eliminating architectural barriers, providing access to
transportation, and eliminating discriminatory effects of job
qualification procedures.  The Court then noted:  "These statements
would ring hollow if the resulting legislation could not rectify
the harms resulting from action that discriminated by effect as
well as by design."  Id. at 297 (footnote omitted).

     Of course, {36.204 is subject to the various limitations
contained in subpart C including, for example, necessity
({36.301(a)), safety ({36.301(b)), fundamental alteration
({36.302(a)), readily achievable ({36.304(a)), and undue burden
({36.303(a)).

Section 36.205  Association.

     Section 36.205 implements section 302(b)(1)(E) of the Act,
which provides that a public accommodation shall not exclude or
otherwise deny equal goods, services, facilities, privileges,
advantages, accommodations, or other opportunities to an individual
or entity because of the known disability of an individual with
whom the individual or entity is known to have a relationship or
association.  This section is unchanged from the proposed rule.

     The individuals covered under this section include any
individuals who are discriminated against because of their known
association with an individual with a disability.  For example, it
would be a violation of this part for a day care center to refuse
admission to a child because his or her brother has HIV disease.

     This protection is not limited to those who have a familial
relationship with the individual who has a disability.  If a place
of public accommodation refuses admission to a person with cerebral
palsy and his or her companions, the companions have an independent
right of action under the ADA and this section.

     During the legislative process, the term "entity" was added to
section 302(b)(l)(E) to clarify that the scope of the provision is
intended to encompass not only persons who have a known association
with a person with a disability, but also entities that provide
services to or are otherwise associated with such individuals. 
This provision was intended to ensure that entities such as health
care providers, employees of social service agencies, and others
who provide professional services to persons with disabilities are
not subjected to discrimination because of their professional
association with persons with disabilities.  For example, it would
be a violation of this section to terminate the lease of a entity
operating an independent living center for persons with
disabilities, or to seek to evict a health care provider because
that individual or entity provides services to persons with mental
impairments.

Section 36.206  Retaliation or coercion.

     Section 36.206 implements section 503 of the ADA, which
prohibits retaliation against any individual who exercises his or
her rights under the Act.  This section is unchanged from the
proposed rule.  Paragraph (a) of {36.206 provides that no private
entity or public entity shall discriminate against any individual
because that individual has exercised his or her right to oppose
any act or practice made unlawful by this part, or because that
individual made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing under the
Act or this part.

     Paragraph (b) provides that no private entity or public entity
shall coerce, intimidate, threaten, or interfere with any
individual in the exercise of his or her rights under this part or
because that individual aided or encouraged any other individual in
the exercise or enjoyment of any right granted or protected by the
Act or this part.

     Illustrations of practices prohibited by this section are
contained in paragraph (c), which is modeled on a similar provision
in the regulations issued by the Department of Housing and Urban
Development to implement the Fair Housing Act (see 24 CFR
l00.400(c)(l)).  Prohibited actions may include: 

     1)  Coercing an individual to deny or limit the benefits,
     services, or advantages to which he or she is entitled
     under the Act or this part;

     2)  Threatening, intimidating, or interfering with an
     individual who is seeking to obtain or use the goods,
     services, facilities, privileges, advantages, or
     accommodations of a public accommodation;

     3)  Intimidating or threatening any person because that
     person is assisting or encouraging an individual or group
     entitled to claim the rights granted or protected by the
     Act or this part to exercise those rights; or

     4)  Retaliating against any person because that person
     has participated in any investigation or action to
     enforce the Act or this part.

     This section protects not only individuals who allege a
violation of the Act or this part, but also any individuals who
support or assist them.  This section applies to all investigations
or proceedings initiated under the Act or this part without regard
to the ultimate resolution of the underlying allegations.  Because
this section prohibits any act of retaliation or coercion in
response to an individual's effort to exercise rights established
by the Act and this part (or to support the efforts of another
individual), the section applies not only to public accommodations
that are otherwise subject to this part, but also to individuals
other than public accommodations or to public entities.  For
example, it would be a violation of the Act and this part for a
private individual, e.g., a restaurant customer, to harass or
intimidate an individual with a disability in an effort to prevent
that individual from patronizing the restaurant.  It would,
likewise, be a violation of the Act and this part for a public
entity to take adverse action against an employee who appeared as
a witness on behalf of an indvidual who sought to enforce the Act. 


Section 36.207 Places of public accommodation located in private
               residences.

     A private home used exclusively as a residence is not covered
by title III because it is neither a "commercial facility" nor a
"place of public accommodation."  In some situations, however, a
private home is not used exclusively as a residence, but houses a
place of public accommodation in all or part of a home (e.g., an
accountant who meets with his or her clients at his or her
residence).  Section 36.207(a) provides that those portions of the
private residence used in the operation of the place of public
accommodation are covered by this part.  

     For instance, a home or a portion of a home may be used as a
day care center during the day and a residence at night.  If all
parts of the house are used for the day care center, then the
entire residence is a place of public accommodation because no part
of the house is used exclusively as a residence.  If an accountant
uses one room in the house solely as his or her professional
office, then a portion of the house is used exclusively as a place
of public accommodation and a portion is used exclusively as a
residence.  Section 36.207 provides that when a portion of a
residence is used exclusively as a residence, that portion is not
covered by this part.  Thus, the portions of the accountant's
house, other than the professional office and areas and spaces
leading to it, are not covered by this part.  All of the
requirements of this rule apply to the covered portions, including
requirements to make reasonable modifications in policies,
eliminate discriminatory eligibility criteria, take readily
achievable measures to remove barriers or provide readily
achievable alternatives (e.g., making house calls), provide
auxiliary aids and services and undertake only accessible new
construction and alterations.

     Paragraph (b) was added in response to comments that sought
clarification on the extent of coverage of the private residence
used as the place of public accommodation.  The final rule makes
clear that the place of accommodation extends to all areas of the
home used by clients and customers of the place of public
accommodation.  Thus, the ADA would apply to any door or entry way,
hallways, a restroom, if used by customers and clients; and any
other portion of the residence, interior or exterior, used by
customers or clients of the public accommodation.  This
interpretation is simply an application of the general rule for all
public accommodations, which extends statutory requirements to all
portions of the facility used by customers and clients, including,
if applicable, restrooms, hallways, and approaches to the public
accommodation.  As with other public accommodations, barriers at
the entrance and on the sidewalk leading up to the public
accommodation, if the sidewalk is under the control of the public
accommodation, must be removed if doing so is readily achievable.

     The Department recognizes that many businesses that operate
out of personal residences are quite small, often employing only
the homeowner and having limited total revenues.  In these
circumstances the effect of ADA coverage would likely be quite
minimal.  For example, because the obligation to remove existing
architectural barriers is limited to those that are easily
accomplishable without much difficulty or expense (see {36.304),
the range of required actions would be quite modest.  It might not
be readily achievable for such a place of public accommodation to
remove any existing barriers.  If it is not readily achievable to
remove existing architectural barriers, a public accommodation
located in a private residence may meet its obligations under the
Act and this part by providing its goods or services to clients or
customers with disabilities through the use of alternative
measures, including delivery of goods or services in the home of
the customer or client, to the extent that such alternative
measures are readily achievable (see {36.305).

     Some commenters asked for clarification as to how the new
construction and alteration standards of subpart D will apply to
residences.  The new construction standards only apply to the
extent that the residence or portion of the residence was designed
or intended for use as a public accommodation.  Thus, for example,
if a portion of a home is designed or constructed for use
exclusively as a lawyer's office or for use both as a lawyer's
office and for residential purposes, then it must be designed in
accordance with the new construction standards in the appendix. 
Likewise, if a homeowner is undertaking alterations to convert all
or part of his residence to a place of public accommodation, that
work must be done in compliance with the alterations standards in
the appendix.

     The preamble to the proposed rule addressed the applicable
requirements when a commercial facility is located in a private
residence.  That situation is now addressed in {36.401(b) of
subpart D.

Section 36.208  Direct threat.

     Section 36.208(a) implements section 302(b)(3) of the Act by
providing that this part does not require a public accommodation to
permit an individual to participate in or benefit from the goods,
services, facilities, privileges, advantages and accommodations of
the public accommodation, if that individual poses a direct threat
to the health or safety of others.  This section is unchanged from
the proposed rule.

     The Department received a significant number of comments on
this section.  Commenters representing individuals with
disabilities generally supported this provision, but suggested
revisions to further limit its application.  Commenters
representing public accommodations generally endorsed modifications
that would permit a public accommodation to exercise its own
judgment in determining whether an individual poses a direct
threat.  

     The inclusion of this provision is not intended to imply that
persons with disabilities pose risks to others.  It is intended to
address concerns that may arise in this area.  It establishes a
strict standard that must be met before denying service to an
individual with a disability or excluding that individual from
participation.

     Paragraph (b) of this section explains that a "direct threat"
is a significant risk to the health or safety of others that cannot
be eliminated by a modification of policies, practices, or
procedures, or by the provision of auxiliary aids and services. 
This paragraph codifies the standard first applied by the Supreme
Court in School Board of Nassau County v. Arline, 480 U.S. 273
(1987), in which the Court held that an individual with a
contagious disease may be an "individual with handicaps" under
section 504 of the Rehabilitation Act.  In Arline, the Supreme
Court recognized that there is a need to balance the interests of
people with disabilities against legitimate concerns for public
safety.  Although persons with disabilities are generally entitled
to the protection of this part, a person who poses a significant
risk to others may be excluded if reasonable modifications to the
public accommodation's policies, practices, or procedures will not
eliminate that risk.  The determination that a person poses a
direct threat to the health or safety of others may not be based on
generalizations or stereotypes about the effects of a particular
disability; it must be based on an individual assessment that
conforms to the requirements of paragraph (c) of this section.

     Paragraph (c) establishes the test to use in determining
whether an individual poses a direct threat to the health or safety
of others.  A public accommodation is required to make an
individualized assessment, based on reasonable judgment that relies
on current medical evidence or on the best available objective
evidence, to determine:  the nature, duration, and severity of the
risk; the probability that the potential injury will actually
occur; and whether reasonable modifications of policies, practices,
or procedures will mitigate the risk.  This is the test established
by the Supreme Court in Arline.  Such an inquiry is essential if
the law is to achieve its goal of protecting disabled individuals
from discrimination based on prejudice, stereotypes, or unfounded
fear, while giving appropriate weight to legitimate concerns, such
as the need to avoid exposing others to significant health and
safety risks.  Making this assessment will not usually require the
services of a physician.  Sources for medical knowledge include
guidance from public health authorities, such as the U.S. Public
Health Service, the Centers for Disease Control, and the National
Institutes of Health, including the National Institute of Mental
Health.

     Many of the commenters sought clarification of the inquiry
requirement.  Some suggested that public accommodations should be
prohibited from making any inquiries to determine if an individual
with a disability would pose a direct threat to other persons.  The
Department believes that to preclude all such inquiries would be
inappropriate.  Under {36.301 of this part, a public accommodation
is permitted to establish eligibility criteria necessary for the
safe operation of the place of public accommodation.  Implicit in
that right is the right to ask if an individual meets the criteria. 
However, any eligibility or safety standard established by a public
accommodation must be based on actual risk, not on speculation or
stereotypes; it must be applied to all clients or customers of the
place of public accommodation; and inquiries must be limited to
matters necessary to the application of the standard.

     Some commenters suggested that the test established in the
Arline decision, which was developed in the context of an
employment case, is too stringent to apply in a public
accommodations context where interaction between the public
accommodation and its client or customer is often very brief.  One
suggested alternative was to permit public accommodations to
exercise "good faith" judgment in determining whether an individual
poses a direct threat, particularly when a public accommodation is
dealing with a client or customer engaged in disorderly or
disruptive behavior. 

     The Department believes that the ADA clearly requires that any
determination to exclude an individual from participation must be
based on an objective standard.  A public accommodation may
establish neutral eligibility criteria as a condition of receiving
its goods or services.  As long as these criteria are necessary for
the safe provision of the public accommodation's goods and services
and applied neutrally to all clients or customers, regardless of
whether they are individuals with disabilities, a person who is
unable to meet the criteria may be excluded from participation
without inquiry into the underlying reason for the inability to
comply.  In places of public accommodation such as restaurants,
theaters, or hotels, where the contact between the public
accommodation and its clients is transitory, the uniform
application of an eligibility standard precluding violent or
disruptive behavior by any client or customer should be sufficient
to enable a public accommodation to conduct its business in an
orderly manner.

     Some other commenters asked for clarification of the
application of this provision to persons, particularly children,
who have short-term, contagious illnesses, such as fevers,
influenza, or the common cold.  It is common practice in schools
and day care settings to exclude persons with such illnesses until
the symptoms subside.  The Department believes that these
commenters misunderstand the scope of this rule.  The ADA only 
prohibits discrimination against an individual with a disability. 
Under the ADA and this part, a "disability" is defined as a
physical or mental impairment that substantially limits one or more
major life activities.  Common, short-term illnesses that
predictably resolve themselves within a matter of days do not
"substantially limit" a major life activity; therefore, it is not
a violation of this part to exclude an individual from receiving
the services of a public accommodation because of such transitory
illness.  However, this part does apply to persons who have long-
term illnesses.  Any determination with respect to a person who has
a chronic or long-term illness must be made in compliance with the
requirements of this section.

Section 36.209  Illegal use of drugs.

     Section 36.209 effectuates section 510 of the ADA, which
clarifies the Act's application to people who use drugs illegally. 
Paragraph (a) provides that this part does not prohibit
discrimination based on an individual's current illegal use of
drugs.

     The Act and the regulation distinguish between illegal use of
drugs and the legal use of substances, whether or not those
substances are "controlled substances," as defined in the
Controlled Substances Act (21 U.S.C. 812).  Some controlled
substances are prescription drugs that have legitimate medical
uses.  Section 36.209 does not affect use of controlled substances
pursuant to a valid prescription, under supervision by a licensed
health care professional, or other use that is authorized by the
Controlled Substances Act or any other provision of Federal law. 
It does apply to illegal use of those substances, as well as to
illegal use of controlled substances that are not prescription
drugs.  The key question is whether the individual's use of the
substance is illegal, not whether the substance has recognized
legal uses.  Alcohol is not a controlled substance, so use of
alcohol is not addressed by {36.209.  Alcoholics are individuals
with disabilities, subject to the protections of the statute.

     A distinction is also made between the use of a substance and
the status of being addicted to that substance.  Addiction is a
disability, and addicts are individuals with disabilities protected
by the Act.  The protection, however, does not extend to actions
based on the illegal use of the substance.  In other words, an
addict cannot use the fact of his or her addiction as a defense to
an action based on illegal use of drugs.  This distinction is not
artificial.  Congress intended to deny protection to people who
engage in the illegal use of drugs, whether or not they are
addicted, but to provide protection to addicts so long as they are
not currently using drugs.

     A third distinction is the difficult one between current use
and former use.  The definition of "current illegal use of drugs"
in {36.104, which is based on the report of the Conference
Committee, H.R. Conf. Rep. No. 596, 101st Cong., 2d Sess. 64
(1990), is "illegal use of drugs that occurred recently enough to
justify a reasonable belief that a person's drug use is current or
that continuing use is a real and ongoing problem."

     Paragraph (a)(2)(i) specifies that an individual who has
successfully completed a supervised drug rehabilitation program or
has otherwise been rehabilitated successfully and who is not
engaging in current illegal use of drugs is protected.   Paragraph
(a)(2)(ii) clarifies that an individual who is currently
participating in a supervised rehabilitation program and is not
engaging in current illegal use of drugs is protected.  Paragraph
(a)(2)(iii) provides that a person who is erroneously regarded as
engaging in current illegal use of drugs, but who is not engaging
in such use, is protected.  

     Paragraph (b) provides a limited exception to the exclusion of
current illegal users of drugs from the protections of the Act.  It
prohibits denial of health services, or services provided in
connection with drug rehabilitation, to an individual on the basis
of current illegal use of drugs, if the individual is otherwise
entitled to such services.  As explained further in the discussion
of {36.302, a health care facility that specializes in a particular
type of treatment, such as care of burn victims, is not required to
provide drug rehabilitation services, but it cannot refuse to treat
an individual's burns on the grounds that the individual is
illegally using drugs.      

     A commenter argued that health care providers should be
permitted to use their medical judgment to postpone discretionary
medical treatment of individuals under the influence of alcohol or
drugs.  The regulation permits a medical practitioner to take into
account an individual's use of drugs in determining appropriate
medical treatment.  Section 36.209 provides that the prohibitions
on discrimination in this part do not apply when the public
accommodation acts on the basis of current illegal use of drugs. 
Although those prohibitions do apply under paragraph (b), the
limitations established under this part also apply.  Thus, under
{36.208, a health care provider or other public accommodation
covered under {36.209(b) may exclude an individual whose current
illegal use of drugs poses a direct threat to the health or safety
of others, and, under {36.301, a public accommodation may impose or
apply eligibility criteria that are necessary for the provision of
the services being offered, and may impose legitimate safety
requirements that are necessary for safe operation.  These same
limitations also apply to individuals with disabilities who use
alcohol or prescription drugs.  The Department believes that these
provisions address this commenter's concerns.

     Other commenters pointed out that abstention from the use of
drugs is an essential condition for participation in some drug
rehabilitation programs, and may be a necessary requirement in
inpatient or residential settings.  The Department believes that
this comment is well-founded.  Congress clearly did not intend to
exclude from drug treatment programs the very individuals who need
such programs because of their use of drugs.  In such a situation,
however, once an individual has been admitted to a program,
abstention may be a necessary and appropriate condition to
continued participation.  The final rule therefore provides that a
drug rehabilitation or treatment program may deny participation to
individuals who use drugs while they are in the program.

     Paragraph (c) expresses Congress' intention that the Act be
neutral with respect to testing for illegal use of drugs.  This
paragraph implements the provision in section 510(b) of the Act
that allows entities "to adopt or administer reasonable policies or
procedures, including but not limited to drug testing," that ensure
an individual who is participating in a supervised rehabilitation
program, or who has completed such a program or otherwise been
rehabilitated successfully, is no longer engaging in the illegal
use of drugs.  Paragraph (c) is not to be construed to encourage,
prohibit, restrict, or authorize the conducting of testing for the
illegal use of drugs.  

     Paragraph (c) of {36.209 clarifies that it is not a violation
of this part to adopt or administer reasonable policies or
procedures to ensure that an individual who formerly engaged in the
illegal use of drugs is not currently engaging in illegal use of
drugs.  Any such policies or procedures must, of course, be
reasonable, and must be designed to identify accurately the illegal
use of drugs.  This paragraph does not authorize inquiries, tests,
or other procedures that would disclose use of substances that are
not controlled substances or are taken under supervision by a
licensed health care professional, or other uses authorized by the
Controlled Substances Act or other provisions of Federal law,
because such uses are not included in the definition of "illegal
use of drugs."

     One commenter argued that the rule should permit testing for
lawful use of prescription drugs, but most favored the explanation
that tests must be limited to unlawful use in order to avoid
revealing the use of prescription medicine used to treat
disabilities.  Tests revealing legal use of prescription drugs
might violate the prohibition in {36.301 of attempts to
unnecessarily identify the existence of a disability.

Section 36.210  Smoking.

     Section 36.210 restates the clarification in section 501(b) of
the Act that the Act does not preclude the prohibition of, or
imposition of restrictions on, smoking.  Some commenters argued
that {36.210 does not go far enough, and that the regulation should
prohibit smoking in all places of public accommodation.  The
reference to smoking in section 501 merely clarifies that the Act
does not require public accommodations to accommodate smokers by
permitting them to smoke in places of public accommodations.  

Section 36.211.  Maintenance of accessible features.

     Section 36.211 provides that a public accommodation shall
maintain in operable working condition those features of facilities
and equipment that are required to be readily accessible to and
usable by persons with disabilities by the Act or this part.  The
Act requires that, to the maximum extent feasible, facilities must
be accessible to, and usable by, individuals with disabilities. 
This section recognizes that it is not sufficient to provide
features such as accessible routes, elevators, or ramps, if those
features are not maintained in a manner that enables individuals
with disabilities to use them.  Inoperable elevators, locked
accessible doors, or "accessible" routes that are obstructed by
furniture, filing cabinets, or potted plants are neither
"accessible to" nor "usable by" individuals with disabilities.

     Some commenters objected that this section appeared to
establish an absolute requirement and suggested that language from
the preamble be included in the text of the regulation.  It is, of
course, impossible to guarantee that mechanical devices will never
fail to operate.  Paragraph (b) of the final regulation provides
that this section does not prohibit isolated or temporary
interruptions in service or access due to maintenance or repairs. 
This paragraph is intended to clarify that temporary obstructions
or isolated instances of mechanical failure would not be considered
violations of the Act or this part.  However, allowing obstructions
or "out of service" equipment to persist beyond a reasonable period
of time would violate this part, as would repeated mechanical
failures due to improper or inadequate maintenance.   Failure of
the public accommodation to ensure that accessible routes are
properly maintained and free of obstructions, or failure to arrange
prompt repair of inoperable elevators or other equipment intended
to provide access, would also violate this part.

     Other commenters requested that this section be expanded to
include specific requirements for inspection and maintenance of
equipment, for training staff in the proper operation of equipment,
and for maintenance of specific items.  The Department believes
that this section properly establishes the general requirement for
maintaining access and that further, more detailed requirements are
not necessary. 

Section 36.212  Insurance.

     The Department received numerous comments on proposed {36.212. 
Most supported the proposed regulation but felt that it did not go
far enough in protecting individuals with disabilities and persons
associated with them from discrimination.  Many commenters argued
that language from the preamble to the proposed regulation should
be included in the text of the final regulation.  Other commenters
argued that even that language was not strong enough, and that more
stringent standards should be established.  Only a few commenters
argued that the Act does not apply to insurance underwriting
practices or the terms of insurance contracts.  These commenters
cited language from the Senate committee report (S. Rep. No. 116,
101st Cong., 1st Sess., at 84-86 (1989) [hereinafter "Senate
report"]), indicating that Congress did not intend to affect
existing insurance practices.  

     The Department has decided to adopt the language of the
proposed rule without change.  Sections 36.212(a) and (b) restate
section 501(c) of the Act, which provides that the Act shall not be
construed to restrict certain insurance practices on the part of
insurance companies and employers, as long as such practices are
not used to evade the purposes of the Act.  Section 36.212(c) is a
specific application of {36.202(a), which prohibits denial of
participation on the basis of disability.  It provides that a
public accommodation may not refuse to serve an individual with a
disability because of limitations on coverage or rates in its
insurance policies (see Judiciary report at 56). 

     Many commenters supported the requirements of {36.212(c) in
the proposed rule because it addressed an important reason for
denial of services by public accommodations.  One commenter argued
that services could be denied if the insurance coverage required
exclusion of people whose disabilities were reasonably related to
the risks involved in that particular place of public
accommodation.  Sections 36.208 and 36.301 establish criteria for
denial of participation on the basis of legitimate safety concerns. 
This paragraph does not prohibit consideration of such concerns in
insurance policies, but provides that any exclusion on the basis of
disability must be based on the permissible criteria, rather than
on the terms of the insurance contract.

     Language in the committee reports indicates that Congress
intended to reach insurance practices by prohibiting differential
treatment of individuals with disabilities in insurance offered by
public accommodations unless the differences are justified.  "Under
the ADA, a person with a disability cannot be denied insurance or
be subject to different terms or conditions of insurance based on
disability alone, if the disability does not pose increased risks"
(Senate report at 84; Education and Labor report at 136).  Section
501(c)(1) of the Act was intended to emphasize that "insurers may
continue to sell to and underwrite individuals applying for life,
health, or other insurance on an individually underwritten basis,
or to service such insurance products, so long as the standards
used are based on sound actuarial data and not on speculation"
(Judiciary report at 70 (emphasis added); see also Senate report at
85; Education and Labor report at 137).

     The committee reports indicate that underwriting and
classification of risks must be "based on sound actuarial
principles or be related to actual or reasonably anticipated
experience" (see, e.g., Judiciary report at 71).  Moreover, "while
a plan which limits certain kinds of coverage based on
classification of risk would be allowed . . ., the plan may not
refuse to insure, or refuse to continue to insure, or limit the
amount, extent, or kind of coverage available to an individual, or
charge a different rate for the same coverage solely because of a
physical or mental impairment, except where the refusal,
limitation, or rate differential is based on sound actuarial
principles or is related to actual or reasonably anticipated
experience" (Senate report at 85; Education and Labor report at
136-37; Judiciary report at 71).  The ADA, therefore, does not
prohibit use of legitimate actuarial considerations to justify
differential treatment of individuals with disabilities in
insurance.  

     The committee reports provide some guidance on how
nondiscrimination principles in the disability rights area relate
to insurance practices.  For example, a person who is blind may not
be denied coverage based on blindness independent of actuarial risk
classification.  With respect to group health insurance coverage,
an individual with a pre-existing condition may be denied coverage
for that condition for the period specified in the policy, but
cannot be denied coverage for illness or injuries unrelated to the
pre-existing condition.  Also, a public accommodation may offer
insurance policies that limit coverage for certain procedures or
treatments, but may not entirely deny coverage to a person with a
disability.

     The Department requested comment on the extent to which data
that would establish statistically sound correlations are
available.  Numerous commenters cited pervasive problems in the
availability and cost of insurance for individuals with
disabilities and parents of children with disabilities.  No
commenters cited specific data, or sources of data, to support
specific exclusionary practices.  Several commenters reported that,
even when statistics are available, they are often outdated and do
not reflect current medical technology and treatment methods. 
Concern was expressed that adequate efforts are not made to
distinguish those individuals who are high users of health care
from individuals in the same diagnostic groups who may be low users
of health care.  One insurer reported that "hard data and actuarial
statistics are not available to provide precise numerical
justifications for every underwriting determination," but argued
that decisions may be based on "logical principles generally
accepted by actuarial science and fully consistent with state
insurance laws."  The commenter urged that the Department recognize
the validity of information other than statistical data as a basis
for insurance determinations.

     The most frequent comment was a recommendation that the final
regulation should require the insurance company to provide a copy
of the actuarial data on which its actions are based when requested
by the applicant.  Such a requirement would be beyond anything
contemplated by the Act or by Congress and has therefore not been
included in the Department's final rule.  Because the legislative
history of the ADA clarifies that different treatment of
individuals with disabilities in insurance may be justified by
sound actuarial data, such actuarial data will be critical to any
potential litigation on this issue.  This information would
presumably be obtainable in a court proceeding where the insurer's
actuarial data was the basis for different treatment of persons
with disabilities.  In addition, under some State regulatory
schemes, insurers may have to file such actuarial information with
the State regulatory agency and this information may be obtainable
at the State level.

     A few commenters representing the insurance industry conceded
that underwriting practices in life and health insurance are
clearly covered, but argued that property and casualty insurance
are not covered.  The Department sees no reason for this
distinction.  Although life and health insurance are the areas
where the regulation will have its greatest application, the Act
applies equally to unjustified discrimination in all types of
insurance provided by public accommodations.  A number of
commenters, for example, reported difficulties in obtaining
automobile insurance because of their disabilities, despite their
having good driving records.

Section 36.213  Relationship of subpart B to subparts C and D.

     This section explains that subpart B sets forth the general
principles of nondiscrimination applicable to all entities subject
to this regulation, while subparts C and D provide guidance on the
application of this part to specific situations.  The specific
provisions in subparts C and D, including the limitations on those
provisions, control over the general provisions in circumstances
where both specific and general provisions apply.  Resort to the
general provisions of subpart B is only appropriate where there are
no applicable specific rules of guidance in subparts C or D.  This
interaction between the specific requirements and the general
requirements operates with regard to contractual obligations as
well.

     One illustration of this principle is its application to the
obligation of a public accommodation to provide access to services
by removal of architectural barriers or by alternatives to barrier
removal.  The general requirement, established in subpart B by
{36.203, is that a public accommodation must provide its services
to individuals with disabilities in the most integrated setting
appropriate.  This general requirement would appear to
categorically prohibit "segregated" seating for persons in
wheelchairs.  Section 36.304, however, only requires removal of
architectural barriers to the extent that removal is "readily
achievable."  If providing access to all areas of a restaurant, for
example, would not be "readily achievable," a public accommodation
may provide access to selected areas only.  Also, {36.305 provides
that, where barrier removal is not readily achievable, a public
accommodation may use alternative, readily achievable methods of
making services available, such as curbside service or home
delivery.  Thus, in this manner, the specific requirements of
{{36.304 and 36.305 control over the general requirement of
{36.203.

Subpart C -- Specific Requirements

     In general, subpart C implements the "specific prohibitions"
that comprise section 302(b)(2) of the ADA.  It also addresses the
requirements of section 309 of the ADA regarding examinations and
courses.

Section 36.301  Eligibility criteria.

     Section 36.301 of the rule prohibits the imposition or
application of eligibility criteria that screen out or tend to
screen out an individual with a disability or any class of
individuals with disabilities from fully and equally enjoying any
goods, services, facilities, privileges, advantages, and
accommodations, unless such criteria can be shown to be necessary
for the provision of the goods, services, facilities, privileges,
advantages, or accommodations being offered.  This prohibition is
based on section 302(b)(2)(A)(i) of the ADA.

     It would violate this section to establish exclusive or
segregative eligibility criteria that would bar, for example, all
persons who are deaf from playing on a golf course or all
individuals with cerebral palsy from attending a movie theater, or
limit the seating of individuals with Down's syndrome to only
particular areas of a restaurant.  The wishes, tastes, or
preferences of other customers may not be asserted to justify
criteria that would exclude or segregate individuals with
disabilities.

     Section 36.301 also prohibits attempts by a public
accommodation to unnecessarily identify the existence of a
disability; for example, it would be a violation of this section
for a retail store to require an individual to state on a credit
application whether the applicant has epilepsy, mental illness, or
any other disability, or to inquire unnecessarily whether an
individual has HIV disease.

     Section 36.301 also prohibits policies that unnecessarily
impose requirements or burdens on individuals with disabilities
that are not placed on others.  For example, public accommodations
may not require that an individual with a disability be accompanied
by an attendant.  As provided by {36.306, however, a public
accommodation is not required to provide services of a personal
nature including assistance in toileting, eating, or dressing.

     Paragraph (c) of {36.301 provides that public accommodations
may not place a surcharge on a particular individual with a
disability or any group of individuals with disabilities to cover
the costs of measures, such as the provision of auxiliary aids and
services, barrier removal, alternatives to barrier removal, and
reasonable modifications in policies, practices, and procedures,
that are required to provide that individual or group with the
nondiscriminatory treatment required by the Act or this part.

     A number of commenters inquired as to whether deposits
required for the use of auxiliary aids, such as assistive listening
devices, are prohibited surcharges.  It is the Department's view
that reasonable, completely refundable, deposits are not to be
considered surcharges prohibited by this section.  Requiring
deposits is an important means of ensuring the availability of
equipment necessary to ensure compliance with the ADA.

     Other commenters sought clarification as to whether {36.301(c)
prohibits professionals from charging for the additional time that
it may take in certain cases to provide services to an individual
with disabilities.  The Department does not intend {36.301(c) to
prohibit professionals who bill on the basis of time from charging
individuals with disabilities on that basis.  However, fees may not
be charged for the provision of auxiliary aids and services,
barrier removal, alternatives to barrier removal, reasonable
modifications in policies, practices, and procedures, or any other
measures necessary to ensure compliance with the ADA.

     Other commenters inquired as to whether day care centers may
charge for extra services provided to individuals with
disabilities.  As stated above, {36.302(c) is intended only to
prohibit charges for measures necessary to achieve compliance with
the ADA.

     Another commenter asserted that charges may be assessed for
home delivery provided as an alternative to barrier removal under
{36.305, when home delivery is provided to all customers for a fee. 
Charges for home delivery are permissible if home delivery is not
considered an alternative to barrier removal.  If the public
accommodation offers an alternative, such as curb, carry-out, or
sidewalk service for which no surcharge is assessed, then it may
charge for home delivery in accordance with its standard pricing
for home delivery.

      In addition, {36.301 prohibits the imposition of criteria
that "tend to" screen out an individual with a disability.  This
concept, which is derived from current regulations under section
504 (see, e.g., 45 CFR 84.13), makes it discriminatory to impose
policies or criteria that, while not creating a direct bar to
individuals with disabilities, indirectly prevent or limit their
ability to participate.  For example, requiring presentation of a
driver's license as the sole means of identification for purposes
of paying by check would violate this section in situations where,
for example, individuals with severe vision impairments or
developmental disabilities or epilepsy are ineligible to receive a
driver's license and the use of an alternative means of
identification, such as another photo I.D. or credit card, is
feasible.  

     A public accommodation may, however, impose neutral rules and
criteria that screen out, or tend to screen out, individuals with
disabilities, if the criteria are necessary for the safe operation
of the public accommodation.  Examples of safety qualifications
that would be justifiable in appropriate circumstances would
include height requirements for certain amusement park rides or a
requirement that all participants in a recreational rafting
expedition be able to meet a necessary level of swimming
proficiency.  Safety requirements must be based on actual risks and
not on speculation, stereotypes, or generalizations about
individuals with disabilities.

Section 36.302  Modifications in policies, practices, or 
               procedures.

     Section 36.302 of the rule prohibits the failure to make
reasonable modifications in policies, practices, and procedures
when such modifications may be necessary to afford any goods,
services, facilities, privileges, advantages, or accommodations,
unless the entity can demonstrate that making such modifications
would fundamentally alter the nature of such goods, services,
facilities, privileges, advantages, or accommodations.  This
prohibition is based on section 302(b)(2)(A)(ii) of the ADA.

     For example, a parking facility would be required to modify a
rule barring all vans or all vans with raised roofs, if an
individual who uses a wheelchair-accessible van wishes to park in
that facility, and if overhead structures are high enough to
accommodate the height of the van.  A department store may need to
modify a policy of only permitting one person at a time in a
dressing room, if an individual with mental retardation needs and
requests assistance in dressing from a companion.  Public
accommodations may need to revise operational policies to ensure
that services are available to individuals with disabilities.  For
instance, a hotel may need to adopt a policy of keeping an
accessible room unoccupied until an individual with a disability
arrives at the hotel, assuming the individual has properly reserved
the room.

     One example of application of this principle is specifically
included in a new {36.302(d) on check-out aisles.  That paragraph
provides that a store with check-out aisles must ensure that an
adequate number of accessible check-out aisles is kept open during
store hours, or must otherwise modify its policies and practices,
in order to ensure that an equivalent level of convenient service
is provided to individuals with disabilities as is provided to
others.  For example, if only one check-out aisle is accessible,
and it is generally used for express service, one way of providing
equivalent service is to allow persons with mobility impairments to
make all of their purchases at that aisle.  This principle also
applies with respect to other accessible elements and services. 
For example, a particular bank may be in compliance with the
accessibility guidelines for new construction incorporated in
Appendix A with respect to automated teller machines (ATM) at a new
branch office by providing one accessible walk-up machine at that
location, even though an adjacent walk-up ATM is not accessible and
the drive-up ATM is not accessible.  However, the bank would be in
violation of this section if the accessible ATM was located in a
lobby that was locked during evening hours while the drive-up ATM
was available to customers without disabilities during those same
hours.  The bank would need to ensure that the accessible ATM was
available to customers during the hours that any of the other ATM's
was available.

     A number of commenters inquired as to the relationship between
this section and {36.307, "Accessible or special goods."  Under
{36.307, a public accommodation is not required to alter its
inventory to include accessible or special goods that are designed
for, or facilitate use by, individuals with disabilities.  The rule
enunciated in {36.307 is consistent with the "fundamental
alteration" defense to the reasonable modifications requirement of
{36.302.  Therefore, {36.302 would not require the inventory of
goods provided by a public accommodation to be altered to include
goods with accessibility features.  For example, {36.302 would not
require a bookstore to stock Brailled books or order Brailled
books, if it does not do so in the normal course of its business.

     The rule does not require modifications to the legitimate
areas of specialization of service providers.  Section 36.302(b)
provides that a public accommodation may refer an individual with
a disability to another public accommodation, if that individual is
seeking, or requires, treatment or services outside of the
referring public accommodation's area of specialization, and if, in
the normal course of its operations, the referring public
accommodation would make a similar referral for an individual
without a disability who seeks or requires the same treatment or
services.  

     For example, it would not be discriminatory for a physician
who specializes only in burn treatment to refer an individual who
is deaf to another physician for treatment of an injury other than
a burn injury.  To require a physician to accept patients outside
of his or her specialty would fundamentally alter the nature of the
medical practice and, therefore, not be required by this section.

     A clinic specializing exclusively in drug rehabilitation could
similarly refuse to treat a person who is not a drug addict, but
could not refuse to treat a person who is a drug addict simply
because the patient tests positive for HIV.  Conversely, a clinic
that specializes in the treatment of individuals with HIV could
refuse to treat an individual that does not have HIV, but could not
refuse to treat a person for HIV infection simply because that
person is also a drug addict.

     Some commenters requested clarification as to how this
provision would apply to situations where manifestations of the
disability in question, itself, would raise complications requiring
the expertise of a different practitioner.  It is not the
Department's intention in {36.302(b) to prohibit a physician from
referring an individual with a disability to another physician, if
the disability itself creates specialized complications for the
patient's health that the physician lacks the experience or
knowledge to address (see Education and Labor report at 106).

     Section 36.302(c)(1) requires that a public accommodation
modify its policies, practices, or procedures to permit the use of
a service animal by an individual with a disability in any area
open to the general public.  The term "service animal" is defined
in {36.104 to include guide dogs, signal dogs, or any other animal
individually trained to provide assistance to an individual with a
disability.

     A number of commenters pointed to the difficulty of making the
distinction required by the proposed rule between areas open to the
general public and those that are not.  The ambiguity and
uncertainty surrounding these provisions has led the Department to
adopt a single standard for all public accommodations.

     Section 36.302(c)(1) of the final rule now provides that
"[g]enerally, a public accommodation shall modify policies,
practices, and procedures to permit the use of a service animal by
an individual with a disability."  This formulation reflects the
general intent of Congress that public accommodations take the
necessary steps to accommodate service animals and to ensure that
individuals with disabilities are not separated from their service
animals.  It is intended that the broadest feasible access be
provided to service animals in all places of public accommodation,
including movie theaters, restaurants, hotels, retail stores,
hospitals, and nursing homes (see Education and Labor report at
106; Judiciary report at 59).  The section also acknowledges,
however, that, in rare circumstances, accommodation of service
animals may not be required because a fundamental alteration would
result in the nature of the goods, services, facilities,
privileges, or accommodations offered or provided, or the safe
operation of the public accommodation would be jeopardized.

     As specified in {36.302(c)(2), the rule does not require a
public accommodation to supervise or care for any service animal. 
If a service animal must be separated from an individual with a
disability in order to avoid a fundamental alteration or a threat
to safety, it is the responsibility of the individual with the
disability to arrange for the care and supervision of the animal
during the period of separation.

     A museum would not be required by {36.302 to modify a policy
barring the touching of delicate works of art in order to enhance
the participation of individuals who are blind, if the touching
threatened the integrity of the work.  Damage to a museum piece
would clearly be a fundamental alteration that is not required by
this section.        

Section 36.303  Auxiliary aids and services.

     Section 36.303 of the final rule requires a public
accommodation to take such steps as may be necessary to ensure that
no individual with a disability is excluded, denied services,
segregated or otherwise treated differently than other individuals
because of the absence of auxiliary aids and services, unless the
public accommodation can demonstrate that taking such steps would
fundamentally alter the nature of the goods, services, facilities,
advantages, or accommodations being offered or would result in an
undue burden.  This requirement is based on section
302(b)(2)(A)(iii) of the ADA.

     Implicit in this duty to provide auxiliary aids and services
is the underlying obligation of a public accommodation to
communicate effectively with its customers, clients, patients, or
participants who have disabilities affecting hearing, vision, or
speech.  To give emphasis to this underlying obligation,         
{36.303(c) of the rule incorporates language derived from section
504 regulations for federally conducted programs (see e.g., 28 CFR
39.160(a)) that requires that appropriate auxiliary aids and
services be furnished to ensure that communication with persons
with disabilities is as effective as communication with others.

     Auxiliary aids and services include a wide range of services
and devices for ensuring effective communication.  Use of the most
advanced technology is not required so long as effective
communication is ensured.  The Department's proposed {36.303(b)
provided a list of examples of auxiliary aids and services that was
taken from the definition of auxiliary aids and services in section
3(1) of the ADA and was supplemented by examples from regulations
implementing section 504 in federally conducted programs (see e.g.,
28 CFR 39.103).  A substantial number of commenters suggested that
additional examples be added to this list.  The Department has
added several items to this list but wishes to clarify that the
list is not an all-inclusive or exhaustive catalogue of possible or
available auxiliary aids or services.  It is not possible to
provide an exhaustive list, and such an attempt would omit new
devices that will become available with emerging technology.

     The Department has added videotext displays, computer-aided
transcription services, and open and closed captioning to the list
of examples.  Videotext displays have become an important means of
accessing auditory communications through a public address system. 
Transcription services are used to relay aurally delivered material
almost simultaneously in written form to persons who are deaf or
hard of hearing.  This technology is often used at conferences,
conventions, and hearings.  While the proposed rule expressly
included television decoder equipment as an auxiliary aid or
service, it did not mention captioning itself.  The final rule
rectifies this omission by mentioning both closed and open
captioning.  

     In this section, the Department has changed the proposed
rule's phrase, "orally delivered materials," to the phrase,
"aurally delivered materials."  This new phrase tracks the language
in the definition of "auxiliary aids and services" in section 3 of
the ADA and is meant to include nonverbal sounds and alarms and
computer-generated speech.

     Several persons and organizations requested that the
Department replace the term "telecommunications devices for deaf
persons" or "TDD's" with the term "text telephone."  The Department
has declined to do so.  The Department is aware that the
Architectural and Transportation Barriers Compliance Board has used
the phrase "text telephone" in lieu of the statutory term "TDD" in
its final accessibility guidelines.  Title IV of the ADA, however,
uses the term "Telecommunications Device for the Deaf," and the
Department believes it would be inappropriate to abandon this
statutory term at this time.

       Paragraph (b)(2) lists examples of aids and services for
making visually delivered materials accessible to persons with
visual impairments.  Many commenters proposed additional examples
such as signage or mapping, audio description services, secondary
auditory programs (SAP), telebraillers, and reading machines. 
While the Department declines to add these items to the list in the
regulation, they may be considered appropriate auxiliary aids and
services.

     Paragraph (b)(3) refers to the acquisition or modification of
equipment or devices.  For example, tape players used for an audio-
guided tour of a museum exhibit may require the addition of
Brailled adhesive labels to the buttons on a reasonable number of
the tape players to facilitate their use by individuals who are
blind.  Similarly, permanent or portable assistive listening
systems for persons with hearing impairments may be required at a
hotel conference center.

     Several commenters suggested the addition of current
technological innovations in microelectronics and computerized
control systems (e.g., voice recognition systems, automatic dialing
telephones, and infrared elevator and light control systems) to the
list of auxiliary aids and services.  The Department interprets
auxiliary aids and services as those aids and services designed to
provide effective communications, i.e., making aurally and visually
delivered information available to persons with hearing, speech,
and vision impairments.  Methods of making services, programs, or
activities accessible to, or usable by, individuals with mobility
or manual dexterity impairments are addressed by other sections of
this part, including the requirements for modifications in
policies, practices, or procedures ({36.302), the elimination of
existing architectural barriers ({36.304), and the provision of
alternatives to barriers removal ({36.305).

     Paragraph (b)(4) refers to other similar services and actions. 
Several commenters asked for clarification that "similar services
and actions" include retrieving items from shelves, assistance in
reaching a marginally accessible seat, pushing a barrier aside in
order to provide an accessible route, or assistance in removing a
sweater or coat.  While retrieving an item from a shelf might be an
"auxiliary aid or service" for a blind person who could not locate
the item without assistance, it might be a readily achievable
alternative to barrier removal for a person using a wheelchair who
could not reach the shelf, or a reasonable modification to a self-
service policy for an individual who lacked the ability to grasp
the item.  (Of course, a store would not be required to provide a
personal shopper.)   As explained above, auxiliary aids and
services are those aids and services required to provide effective
communications. Other forms of assistance are more appropriately
addressed by other provisions of the final rule.

     The auxiliary aid requirement is a flexible one.  A public
accommodation can choose among various alternatives as long as the
result is effective communication.  For example, a restaurant would
not be required to provide menus in Braille for patrons who are
blind, if the waiters in the restaurant are made available to read
the menu.  Similarly, a clothing boutique would not be required to
have Brailled price tags if sales personnel provide price
information orally upon request; and a bookstore would not be
required to make available a sign language interpreter, because
effective communication can be conducted by notepad.

     A critical determination is what constitutes an effective
auxiliary aid or service.  The Department's proposed rule
recommended that, in determining what auxiliary aid to use, the
public accommodation consult with an individual before providing
him or her with a particular auxiliary aid or service.  This
suggestion sparked a significant volume of public comment.  Many
persons with disabilities, particularly persons who are deaf or
hard of hearing, recommended that the rule should require that
public accommodations give "primary consideration" to the
"expressed choice" of an individual with a disability.  These
commenters asserted that the proposed rule was inconsistent with
congressional intent of the ADA, with the Department's proposed
rule implementing title II of the ADA, and with longstanding
interpretations of section 504 of the Rehabilitation Act.

     Based upon a careful review of the ADA legislative history,
the Department believes that Congress did not intend under title
III to impose upon a public accommodation the requirement that it
give primary consideration to the request of the individual with a
disability.  To the contrary, the legislative history demonstrates
congressional intent to strongly encourage consulting with persons
with disabilities.  In its analysis of the ADA's auxiliary aids
requirement for public accommodations, the House Education and
Labor Committee stated that it "expects" that "public
accommodation[s] will consult with the individual with a disability
before providing a particular auxiliary aid or service" (Education
and Labor report at 107).  Some commenters also cited a different
committee statement that used mandatory language as evidence of
legislative intent to require primary consideration.  However, this
statement was made in the context of reasonable accommodations
required by Title I with respect to employment (Education and Labor
report at 67).  Thus, the Department finds that strongly
encouraging consultation with persons with disabilities, in lieu of
mandating primary consideration of their expressed choice, is
consistent with congressional intent.

     The Department wishes to emphasize that public accommodations
must take steps necessary to ensure that an individual with a
disability will not be excluded, denied services, segregated or
otherwise treated differently from other individuals because of the
use of inappropriate or ineffective auxiliary aids.  In those
situations requiring an interpreter, the public accommodations must
secure the services of a qualified interpreter, unless an undue
burden would result.

     In the analysis of {36.303(c) in the proposed rule, the
Department gave as an example the situation where a note pad and
written materials were insufficient to permit effective
communication in a doctor's office when the matter to be decided
was whether major surgery was necessary.  Many commenters objected
to this statement, asserting that it gave the impression that only
decisions about major surgery would merit the provision of a sign
language interpreter.  The statement would, as the commenters also
claimed, convey the impression to other public accommodations that
written communications would meet the regulatory requirements in
all but the most extreme situations.  
The Department, when using the example of major surgery, did not
intent to limit the provision of interpreter services to the most
extreme situations.

     Other situations may also require the use of interpreters to
ensure effective communication depending on the facts of the
particular case.  It is not difficult to imagine a wide range of
communications involving areas such as health, legal matters, and
finances that would be sufficiently lengthy or complex to require
an interpreter for effective communication.  In some situations, an
effective alternative to use of a notepad or an interpreter may be
the use of a computer terminal upon which the representative of the
public accommodation and the customer or client can exchange
typewritten messages.

     Section 36.303(d) specifically addresses requirements for
TDD's.  Partly because of the availability of telecommunications
relay services to be established under title IV of the ADA,
{36.303(d)(2) provides that a public accommodation is not required
to use a telecommunication device for the deaf (TDD) in receiving
or making telephone calls incident to its operations.  Several
commenters were concerned that relay services would not be
sufficient to provide effective access in a number of situations. 
Commenters argued that relay systems (1) do not provide effective
access to the automated systems that require the caller to respond
by pushing a button on a touch tone phone, (2) cannot operate fast
enough to convey messages on answering machines, or to permit a TDD
user to leave a recorded message, and (3) are not appropriate for
calling crisis lines relating to such matters as rape, domestic
violence, child abuse, and drugs where confidentiality is a
concern.  The Department believes that it is more appropriate for
the Federal Communications Commission to address these issues in
its rulemaking under title IV.   

     A public accommodation is, however, required to make a TDD
available to an individual with impaired hearing or speech, if it
customarily offers telephone service to its customers, clients,
patients, or participants on more than an incidental convenience
basis.  Where entry to a place of public accommodation requires use
of a security entrance telephone, a TDD or other effective means of
communication must be provided for use by an individual with
impaired hearing or speech.

     In other words, individual retail stores, doctors' offices,
restaurants, or similar establishments are not required by this
section to have TDD's, because TDD users will be able to make
inquiries, appointments, or reservations with such establishments
through the relay system established under title IV of the ADA. 
The public accommodation will likewise be able to contact TDD users
through the relay system.  On the other hand, hotels, hospitals,
and other similar establishments that offer nondisabled individuals
the opportunity to make outgoing telephone calls on more than an
incidental convenience basis must provide a TDD on request. 

     Section 36.303(e) requires places of lodging that provide
televisions in five or more guest rooms and hospitals to provide,
upon request, a means for decoding closed captions for use by an
individual with impaired hearing.  Hotels should also provide a TDD
or similar device at the front desk in order to take calls from
guests who use TDD's in their rooms.  In this way guests with
hearing impairments can avail themselves of such hotel services as
making inquiries of the front desk and ordering room service.  The
term "hospital" is used in its general sense and should be
interpreted broadly.

     Movie theaters are not required by {36.303 to present open-
captioned films.  However, other public accommodations that impart
verbal information through soundtracks on films, video tapes, or
slide shows are required to make such information accessible to
persons with hearing impairments.  Captioning is one means to make
the information accessible to individuals with disabilities.

     The rule specifies that auxiliary aids and services include
the acquisition or modification of equipment or devices.  For
example, tape players used for an audio-guided tour of a museum
exhibit may require the addition of Brailled adhesive labels to the
buttons on a reasonable number of the tape players to facilitate
their use by individuals who are blind.  Similarly, a hotel
conference center may need to provide permanent or portable
assistive listening systems for persons with hearing impairments.

     As provided in {36.303(f), a public accommodation is not
required to provide any particular aid or service that would result
either in a fundamental alteration in the nature of the goods,
services, facilities, privileges, advantages, or accommodations
offered or in an undue burden.  Both of these statutory limitations
are derived from existing regulations and caselaw under section 504
and are to be applied on a case-by-case basis (see, e.g., 28 CFR
39.160(d) and Southeastern Community College v. Davis, 442 U.S. 397
(1979)).  Congress intended that "undue burden" under {36.303 and
"undue hardship," which is used in the employment provisions of
title I of the ADA, should be determined on a case-by-case basis
under the same standards and in light of the same factors
(Judiciary report at 59).  The rule, therefore, in accordance with
the definition of undue hardship in section 101(10) of the ADA,
defines undue burden as "significant difficulty or expense" (see
{{36.104 and 36.303(a)) and requires that undue burden be
determined in light of the factors listed in the definition in
36.104.

     Consistent with regulations implementing section 504 in
federally conducted programs (see, e.g., 28 CFR 39.160(d)),
{36.303(f) provides that the fact that the provision of a
particular auxiliary aid or service would result in an undue burden
does not relieve a public accommodation from the duty to furnish an
alternative auxiliary aid or service, if available, that would not
result in such a burden.  

     Section {36.303(g) of the proposed rule has been deleted from
this section and included in a new {36.306.  That new section
continues to make clear that the auxiliary aids requirement does
not mandate the provision of individually prescribed devices, such
as prescription eyeglasses or hearing aids.

     The costs of compliance with the requirements of this section
may not be financed by surcharges limited to particular individuals
with disabilities or any group of individuals with disabilities
({36.301(c)).

Section 36.304  Removal of barriers.

     Section 36.304 requires the removal of architectural barriers
and communication barriers that are structural in nature in
existing facilities, where such removal is readily achievable,
i.e., easily accomplishable and able to be carried out without much
difficulty or expense.  This requirement is based on section
302(b)(2)(A)(iv) of the ADA.

     A number of commenters interpreted the phrase "communication
barriers that are structural in nature" broadly to encompass the
provision of communications devices such as TDD's, telephone
handset amplifiers, assistive listening devices, and digital check-
out displays.  The statute, however, as read by the Department,
limits the application of the phrase "communications barriers that
are structural in nature" to those barriers that are an integral
part of the physical structure of a facility.  In addition to the
communications barriers posed by permanent signage and alarm
systems noted by Congress (see Education and Labor report at 110),
the Department would also include among the communications barriers
covered by {36.304 the failure to provide adequate sound buffers,
and the presence of physical partitions that hamper the passage of
sound waves between employees and customers.  Given that {36.304's
proper focus is on the removal of physical barriers, the Department
believes that the obligation to provide communications equipment
and devices such as TDD's, telephone handset amplifiers, assistive
listening devices, and digital check-out displays is more
appropriately determined by the requirements for auxiliary aids and
services under {36.303 (see Education and Labor report at 107-108). 
The obligation to remove communications barriers that are
structural in nature under {36.304, of course, is independent of
any obligation to provide auxiliary aids and services under
{36.303.

     The statutory provision also requires the readily achievable
removal of certain barriers in existing vehicles and rail passenger
cars.  This transportation requirement is not included in {36.304,
but rather in {36.310(b) of the rule.

     In striking a balance between guaranteeing access to
individuals with disabilities and recognizing the legitimate cost
concerns of businesses and other private entities, the ADA
establishes different standards for existing facilities and new
construction.  In existing facilities, which are the subject of
{36.304, where retrofitting may prove costly, a less rigorous
degree of accessibility is required than in the case of new
construction and alterations (see {{36.401-36.406) where
accessibility can be more conveniently and economically
incorporated in the initial stages of design and construction.

     For example, a bank with existing automatic teller machines
(ATM's) would have to remove barriers to the use of the ATM's, if
it is readily achievable to do so.  Whether or not it is necessary
to take actions such as ramping a few steps or raising or lowering
an ATM would be determined by whether the actions can be
accomplished easily and without much difficulty or expense.

     On the other hand, a newly constructed bank with ATM's would
be required by {36.401 to have an ATM that is "readily accessible
to and usable by" persons with disabilities in accordance with
accessibility guidelines incorporated under {36.406.

     The requirement to remove architectural barriers includes the
removal of physical barriers of any kind.  For example, {36.304
requires the removal, when readily achievable, of barriers caused
by the location of temporary or movable structures, such as
furniture, equipment, and display racks.  In order to provide
access to individuals who use wheelchairs, for example, restaurants
may need to rearrange tables and chairs, and department stores may
need to reconfigure display racks and shelves.  As stated in
{36.304(f), such actions are not readily achievable to the extent
that they would result in a significant loss of selling or serving
space.  If the widening of all aisles in selling or serving areas
is not readily achievable, then selected widening should be
undertaken to maximize the amount of merchandise or the number of
tables accessible to individuals who use wheelchairs.  Access to
goods and services provided in any remaining inaccessible areas
must be made available through alternative methods to barrier
removal, as required by {36.305.

     Because the purpose of title III of the ADA is to ensure that
public accommodations are accessible to their customers, clients,
or patrons (as opposed to their employees, who are the focus of
title I), the obligation to remove barriers under {36.304 does not
extend to areas of a facility that are used exclusively as employee
work areas.

     Section 36.304(b) provides a wide-ranging list of the types of
modest measures that may be taken to remove barriers and that are
likely to be readily achievable.  The list includes examples of
measures, such as adding raised letter markings on elevator control
buttons and installing flashing alarm lights, that would be used to
remove communications barriers that are structural in nature.  It
is not an exhaustive list, but merely an illustrative one. 
Moreover, the inclusion of a measure on this list does not mean
that it is readily achievable in all cases.  Whether or not any of
these measures is readily achievable is to be determined on a case-
by-case basis in light of the particular circumstances presented
and the factors listed in the definition of readily achievable
({36.104). 

     A public accommodation generally would not be required to
remove a barrier to physical access posed by a flight of steps, if
removal would require extensive ramping or an elevator.  Ramping a
single step, however, will likely be readily achievable, and
ramping several steps will in many circumstances also be readily
achievable.  The readily achievable standard does not require
barrier removal that requires extensive restructuring or burdensome
expense.  Thus, where it is not readily achievable to do, the ADA
would not require a restaurant to provide access to a restroom
reachable only by a flight of stairs.

     Like {36.405, this section permits deference to the national
interest in preserving significant historic structures.  Barrier
removal would not be considered "readily achievable" if it would
threaten or destroy the historic significance of a building or
facility that is eligible for listing in the National Register of
Historic Places under the National Historic Preservation Act (16
U.S.C. 470, et seq.), or is designated as historic under State or
local law.

     The readily achievable defense requires a less demanding level
of exertion by a public accommodation than does the undue burden
defense to the auxiliary aids requirements of {36.303.  In that
sense, it can be characterized as a "lower" standard than the undue
burden standard.  The readily achievable defense is also less
demanding than the undue hardship defense in section 102(b)(5) of
the ADA, which limits the obligation to make reasonable
accommodation in employment.  Barrier removal measures that are not
easily accomplishable and are not able to be carried out without
much difficulty or expense are not required under the readily
achievable standard, even if they do not impose an undue burden or
an undue hardship.

     Section 36.304(f)(1) of the proposed rule, which stated that
"barrier removal is not readily achievable if it would result in
significant loss of profit or significant loss of efficiency of
operation," has been deleted from the final rule.  Many commenters
objected to this provision because it impermissibly introduced the
notion of profit into a statutory standard that did not include it. 
Concern was expressed that, in order for an action not to be
considered readily achievable, a public accommodation would
inappropriately have to show, for example, not only that the action
could not be done without "much difficulty or expense", but that a
significant loss of profit would result as well.  In addition, some
commenters asserted use of the word "significant," which is used in
the definition of undue hardship under title I (the standard for
interpreting the meaning of undue burden as a defense to title
III's auxiliary aids requirements) (see {{36.104, 36.303(f)), blurs
the fact that the readily achievable standard requires a lower
level of effort on the part of a public accommodation than does the
undue burden standard.

     The obligation to engage in readily achievable barrier removal
is a continuing one.  Over time, barrier removal that initially was
not readily achievable may later be required because of changed
circumstances. Many commenters expressed support for the
Department's position that the obligation to comply with {36.304 is
continuing in nature.  Some urged that the rule require public
accommodations to assess their compliance on at least an annual
basis in light of changes in resources and other factors that would
be relevant to determining what barrier removal measures would be
readily achievable.

     Although the obligation to engage in readily achievable
barrier removal is clearly a continuing duty, the Department has
declined to establish any independent requirement for an annual
assessment or self-evaluation.  It is best left to the public
accommodations subject to {36.304 to establish policies to assess
compliance that are appropriate to the particular circumstances
faced by the wide range of public accommodations covered by the
ADA.  However, even in the absence of an explicit regulatory
requirement for periodic self-evaluations, the Department still
urges public accommodations to establish procedures for an ongoing
assessment of their compliance with the ADA's barrier removal
requirements.  The Department recommends that this process include
appropriate consultation with individuals with disabilities or
organizations representing them.  A serious effort at self-
assessment and consultation can diminish the threat of litigation
and save resources by identifying the most efficient means of
providing required access.

     The Department has been asked for guidance on the best means
for public accommodations to comply voluntarily with this section. 
Such information is more appropriately part of the Department's
technical assistance effort and will be forthcoming over the next
several months.  The Department recommends, however, the
development of an implementation plan designed to achieve
compliance with the ADA's barrier removal requirements before they
become effective on January 26, 1992.  Such a plan, if
appropriately designed and diligently executed, could serve as
evidence of a good faith effort to comply with the requirements of
{36.304.  In developing an implementation plan for readily
achievable barrier removal, a public accommodation should consult
with local organizations representing persons with disabilities and
solicit their suggestions for cost-effective means of making
individual places of public accommodation accessible.  Such
organizations may also be helpful in allocating scarce resources
and establishing priorities.  Local associations of businesses may
want to encourage this process and serve as the forum for
discussions on the local level between disability rights
organizations and local businesses.

     Section 36.304(c) recommends priorities for public
accommodations in removing barriers in existing facilities. 
Because the resources available for barrier removal may not be
adequate to remove all existing barriers at any given time,
{36.304(c) suggests priorities for determining which types of
barriers should be mitigated or eliminated first.  The purpose of
these priorities is to facilitate long-term business planning and
to maximize, in light of limited resources, the degree of effective
access that will result from any given level of expenditure.

     Although many commenters expressed support for the concept of
establishing priorities, a significant number objected to their
mandatory nature in the proposed rule.  The Department shares the
concern of these commenters that mandatory priorities would
increase the likelihood of litigation and inappropriately reduce
the discretion of public accommodations to determine the most
effective mix of barrier removal measures to undertake in
particular circumstances.  Therefore, in the final rule the
priorities are no longer mandatory.

     In response to comments that the priorities failed to address
communications issues, the Department wishes to emphasize that the
priorities encompass the removal of communications barriers that
are structural in nature.  It would be counter to the ADA's
carefully wrought statutory scheme to include in this provision the
wide range of communication devices that are required by the ADA's
provisions on auxiliary aids and services.  The final rule
explicitly includes Brailled and raised letter signage and visual
alarms among the examples of steps to remove barriers provided in
{36.304(c)(2).

     Section 36.304(c)(1) places the highest priority on measures
that will enable individuals with disabilities to physically enter
a place of public accommodation.  This priority on "getting through
the door" recognizes that providing actual physical access to a
facility from public sidewalks, public transportation, or parking
is generally preferable to any alternative arrangements in terms of
both business efficiency and the dignity of individuals with
disabilities.

     The next priority, which is established in {36.304(c)(2), is
for measures that provide access to those areas of a place of
public accommodation where goods and services are made available to
the public.  For example, in a hardware store, to the extent that
it is readily achievable to do so, individuals with disabilities
should be given access not only to assistance at the front desk,
but also access, like that available to other customers, to the
retail display areas of the store.

     The Department agrees with those commenters who argued that
access to the areas where goods and services are provided is
generally more important than the provision of restrooms. 
Therefore, the final rule reverses priorities two and three of the
proposed rule in order to give lower priority to accessible
restrooms.  Consequently, the third priority in the final rule
({36.304(c)(3)) is for measures to provide access to restroom
facilities and the last priority is placed on any remaining
measures required to remove barriers.

     Section 36.304(d) requires that measures taken to remove
barriers under {36.304 be subject to subpart D's requirements for
alterations (except for the path of travel requirements in
{36.403).  It only permits deviations from the subpart D
requirements when compliance with those requirements is not readily
achievable.  In such cases, {36.304(d) permits measures to be taken
that do not fully comply with the subpart D requirements, so long
as the measures do not pose a significant risk to the health or
safety of individuals with disabilities or others.

     This approach represents a change from the proposed rule which
stated that "readily achievable" measures taken solely to remove
barriers under {36.304 are exempt from the alterations requirements
of subpart D.  The intent of the proposed rule was to maximize the
flexibility of public accommodations in undertaking barrier removal
by allowing deviations from the technical standards of subpart D. 
It was thought that allowing slight deviations would provide access
and release additional resources for expanding the amount of
barrier removal that could be obtained under the readily achievable
standard.

     Many commenters, however, representing both businesses and
individuals with disabilities, questioned this approach because of
the likelihood that unsafe or ineffective measures would be taken
in the absence of the subpart D standards for alterations as a
reference point.  Some advocated a rule requiring strict compliance
with the subpart D standard.

     The Department in the final rule has adopted the view of many
commenters that (1) public accommodations should in the first
instance be required to comply with the subpart D standards for
alterations where it is readily achievable to do so and (2) safe,
readily achievable measures must be taken when compliance with the
subpart D standards is not readily achievable.  Reference to the
subpart D standards in this manner will promote certainty and good
design at the same time that permitting slight deviations will
expand the amount of barrier removal that may be achieved under
{36.304.

     Because of the inconvenience to individuals with disabilities
and the safety problems involved in the use of portable ramps,
{36.304(e) permits the use of a portable ramp to comply with
{36.304(a) only when installation of a permanent ramp is not
readily achievable.  In order to promote safety, {36.304(e)
requires that due consideration be given to the incorporation of
features such as nonslip surfaces, railings, anchoring, and
strength of materials in any portable ramp that is used.

     Temporary facilities brought in for use at the site of a
natural disaster are subject to the barrier removal requirements of
{36.304.

     A number of commenters requested clarification regarding how
to determine when a public accommodation has discharged its
obligation to remove barriers in existing facilities.  For example,
is a hotel required by {36.304 to remove barriers in all of its
guest rooms?  Or is some lesser percentage adequate?  A new
paragraph (g) has been added to {36.304 to address this issue.  The
Department believes that the degree of barrier removal required
under {36.304 may be less, but certainly would not be required to
exceed, the standards for alterations under the ADA Accessibility
Guidelines incorporated by subpart D of this part (ADAAG).  The
ADA's requirements for readily achievable barrier removal in
existing facilities are intended to be substantially less rigorous
than those for new construction and alterations.  It, therefore,
would be obviously inappropriate to require actions under {36.304
that would exceed the ADAAG requirements.  Hotels, then, in order
to satisfy the requirements of {36.304, would not be required to
remove barriers in a higher percentage of rooms than required by
ADAAG.  If relevant standards for alterations are not provided in
ADAAG, then reference should be made to the standards for new
construction.

Section 36.305 Alternatives to barrier removal.

     Section 36.305 specifies that where a public accommodation can
demonstrate that removal of a barrier is not readily achievable,
the public accommodation must make its goods, services, facilities,
privileges, advantages, or accommodations available through
alternative methods, if such methods are readily achievable.  This
requirement is based on section 302(b)(2)(A)(v) of the ADA. 

     For example, if it is not readily achievable for a retail
store to raise, lower, or remove shelves or to rearrange display
racks to provide accessible aisles, the store must, if readily
achievable, provide a clerk or take other alternative measures to
retrieve inaccessible merchandise.  Similarly, if it is not readily
achievable to ramp a long flight of stairs leading to the front
door of a restaurant or a pharmacy, the restaurant or the pharmacy
must take alternative measures, if readily achievable, such as
providing curb service or home delivery.  If, within a restaurant,
it is not readily achievable to remove physical barriers to a
certain section of a restaurant, the restaurant must, where it is
readily achievable to do so, offer the same menu in an accessible
area of the restaurant.

     Where alternative methods are used to provide access, a public
accommodation may not charge an individual with a disability for
the costs associated with the alternative method (see {36.301(c)). 
Further analysis of the issue of charging for alternative measures
may be found in the preamble discussion of {36.301(c).

     In some circumstances, because of security considerations,
some alternative methods may not be readily achievable.  The rule
does not require a cashier to leave his or her post to retrieve
items for individuals with disabilities, if there are no other
employees on duty.

     Section 36.305(c) of the proposed rule has been deleted and
the requirements have been included in a new {36.306.  That section
makes clear that the alternative methods requirement does not
mandate the provision of personal devices, such as wheelchairs, or
services of a personal nature.

     In the final rule, {36.305(c) provides specific requirements
regarding alternatives to barrier removal in multiscreen cinemas. 
In some situations, it may not be readily achievable to remove
enough barriers to provide access to all of the theaters of a
multiscreen cinema.  If that is the case, {36.305(c) requires the
cinema to establish a film rotation schedule that provides
reasonable access for individuals who use wheelchairs to films
being presented by the cinema.  It further requires that reasonable
notice be provided to the public as to the location and time of
accessible showings.  Methods for providing notice include
appropriate use of the international accessibility symbol in a
cinema's print advertising and the addition of accessibility
information to a cinema's recorded telephone information line.

Section 36.306  Personal devices and services.

     The final rule includes a new {36.306, entitled "Personal
devices and services."  Section 36.306 of the proposed rule,
"Readily achievable and undue burden:  Factors to be considered,"
was deleted for the reasons described in the preamble discussion of
the definition of the term "readily achievable" in {36.104.  In
place of {{36.303(g) and 36.305(c) of the proposed rule, which
addressed the issue of personal devices and services in the
contexts of auxiliary aids and alternatives to barrier removal,
{36.306 provides a general statement that the regulation does not
require the provision of personal devices and services.  This
section states that a public accommodation is not required to
provide its customers, clients, or participants with personal
devices, such as wheelchairs; individually prescribed devices, such
as prescription eyeglasses or hearing aids; or services of a
personal nature including assistance in eating, toileting, or
dressing.

     This statement serves as a limitation on all the requirements
of the regulation.  The personal devices and services limitation
was intended to have general application in the proposed rule in
all contexts where it was relevant.  The final rule, therefore,
clarifies this point by including a general provision that will
explicitly apply not just to auxiliary aids and services and
alternatives to barrier removal, but across-the-board to include
such relevant areas as modifications in policies, practices, and
procedures ({36.302) and examinations and courses ({36.309), as
well.

     The Department wishes to clarify that measures taken as
alternatives to barrier removal, such as retrieving items from
shelves or providing curb service or home delivery, are not to be
considered personal services.  Similarly, minimal actions that may
be required as modifications in policies, practices, or procedures
under {36.302, such as a waiter's removing the cover from a
customer's straw, a kitchen's cutting up food into smaller pieces,
or a bank's filling out a deposit slip, are not services of a
personal nature within the meaning of {36.306.  (Of course, such
modifications may be required under {36.302 only if they are
"reasonable.")  Similarly, this section does not preclude the
short-term loan of personal receivers that are part of an assistive
listening system.

     Of course, if personal services are customarily provided to
the customers or clients of a public accommodation, e.g., in a
hospital or senior citizen center, then these personal services
should also be provided to persons with disabilities using the
public accommodation.

Section 36.307  Accessible or special goods.

     Section 36.307 establishes that the rule does not require a
public accommodation to alter its inventory to include accessible
or special goods with accessibility features that are designed for,
or facilitate use by, individuals with disabilities.  As specified
in {36.307(c), accessible or special goods include such items as
Brailled versions of books, books on audio-cassettes, closed
captioned video tapes, special sizes or lines of clothing, and
special foods to meet particular dietary needs.  

     The purpose of the ADA's public accommodations requirements is
to ensure accessibility to the goods offered by a public
accommodation, not to alter the nature or mix of goods that the
public accommodation has typically provided.  In other words, a
bookstore, for example, must make its facilities and sales
operations accessible to individuals with disabilities, but is not
required to stock Brailled or large print books.  Similarly, a
video store must make its facilities and rental operations
accessible, but is not required to stock closed-captioned video
tapes.  The Department has been made aware, however, that the most
recent titles in video-tape rental establishments are, in fact,
closed captioned.

     Although a public accommodation is not required by {36.307(a)
to modify its inventory, it is required by {36.307(b), at the
request of an individual with disabilities, to order accessible or
special goods that it does not customarily maintain in stock if, in
the normal course of its operation, it makes special orders for
unstocked goods, and if the accessible or special goods can be
obtained from a supplier with whom the public accommodation
customarily does business. For example, a clothing store would be
required to order specially-sized clothing at the request of an
individual with a disability, if it customarily makes special
orders for clothing that it does not keep in stock, and if the
clothing can be obtained from one of the store's customary
suppliers.

     One commenter asserted that the proposed rule could be
interpreted to require a store to special order accessible or
special goods of all types, even if only one type is specially
ordered in the normal course of its business.  The Department,
however, intends for {36.307(b) to require special orders only of
those particular types of goods for which a public accommodation
normally makes special orders.  For example, a book and recording
store would not have to specially order Brailled books if, in the
normal course of its business, it only specially orders recordings
and not books.

Section 36.308  Seating in assembly areas.

     Section 36.308 establishes specific requirements for removing
barriers to physical access in assembly areas, which include such
facilities as theaters, concert halls, auditoriums, lecture halls,
and conference rooms.  This section does not address the provision
of auxiliary aids or the removal of communications barriers that
are structural in nature.  These communications requirements are
the focus of other provisions of the regulation (see {{36.303-
36.304).

     Individuals who use wheelchairs historically have been
relegated to inferior seating in the back of assembly areas
separate from accompanying family members and friends.  The
provisions of {36.308 are intended to promote integration and
equality in seating.

     In some instances it may not be readily achievable for
auditoriums or theaters to remove seats to allow individuals with
wheelchairs to sit next to accompanying family members or friends. 
In these situations, the final rule retains the requirement that
the public accommodation provide portable chairs or other means to
allow the accompanying individuals to sit with the persons in
wheelchairs.  Persons in wheelchairs should have the same
opportunity to enjoy movies, plays, and similar events with their
families and friends, just as other patrons do.  The final rule
specifies that portable chairs or other means to permit family
members or companions to sit with individuals who use wheelchairs
must be provided only when it is readily achievable to do so.

     In order to facilitate seating of wheelchair users who wish to
transfer to existing seating, paragraph (a)(1) of the final rule
adds a requirement that, to the extent readily achievable, a
reasonable number of seats with removable aisle-side armrests must
be provided.  Many persons in wheelchairs are able to transfer to
existing seating with this relatively minor modification.  This
solution avoids the potential safety hazard created by the use of
portable chairs and fosters integration.  The final ADA
Accessibility Guidelines incorporated by subpart D (ADAAG) also add
a requirement regarding aisle seating that was not in the proposed
guidelines.  In situations when a person in a wheelchair transfers
to existing seating, the public accommodation shall provide
assistance in handling the wheelchair of the patron with the
disability.

     Likewise, consistent with ADAAG, the final rule adds in
{36.308(a)(1)(ii)(B) a requirement that, to the extent readily
achievable, wheelchair seating provide lines of sight and choice of
admission prices comparable to those for members of the general
public.

     Finally, because Congress intended that the requirements for
barrier removal in existing facilities be substantially less
rigorous than those required for new construction and alterations,
the final rule clarifies in {36.308(a)(3) that in no event can the
requirements for existing facilities be interpreted to exceed the
standards for alterations under ADAAG.  For example, {4.33 of ADAAG
only requires wheelchair spaces to be provided in more than one
location when the seating capacity of the assembly area exceeds
300.  Therefore, paragraph (a) of {36.308 may not be interpreted to
require readily achievable dispersal of wheelchair seating in
assembly areas with 300 or fewer seats.  Similarly, {4.l.3(19) of
ADAAG requires six accessible wheelchair locations in an assembly
area with 301 to 500 seats.  The reasonable number of wheelchair
locations required by paragraph (a), therefore, may be less than
six, but may not be interpreted to exceed six.

Proposed Section 36.309  Purchase of furniture and equipment.

     Section 36.309 of the proposed rule would have required that
newly purchased furniture or equipment made available for use at a
place of public accommodation be accessible, to the extent such
furniture or equipment is available, unless this requirement would
fundamentally alter the goods, services, facilities, privileges,
advantages, or accommodations offered, or would not be readily
achievable.  Proposed {36.309 has been omitted from the final rule
because the Department has determined that its requirements are
more properly addressed under other sections, and because there are
currently no appropriate accessibility standards addressing many
types of furniture and equipment.

     Some types of equipment will be required to meet the
accessibility requirements of subpart D.  For example, ADAAG
establishes technical and scoping requirements in new construction
and alterations for automated teller machines and telephones. 
Purchase or modification of equipment is required in certain
instances by the provisions in {{36.201 and 36.202.  For example,
an arcade may need to provide accessible video machines in order to
ensure full and equal enjoyment of the facilities and to provide an
opportunity to participate in the services and facilities it
provides.  The barrier removal requirements of {36.304 will apply
as well to furniture and equipment (lowering shelves, rearranging
furniture, adding Braille labels to a vending machine).

Section 36.309  Examinations and courses.

     Section 36.309(a) sets forth the general rule that any private
entity that offers examinations or courses related to applications,
licensing, certification, or credentialing for secondary or
postsecondary education, professional, or trade purposes shall
offer such examinations or courses in a place 
and manner accessible to persons with disabilities or offer
alternative accessible arrangements for such individuals. 

     Paragraph (a) restates section 309 of the Americans with
Disabilities Act.  Section 309 is intended to fill the gap that is
created when licensing, certification, and other testing
authorities are not covered by section 504 of the Rehabilitation
Act or title II of the ADA.  Any such authority that is covered by
section 504, because of the receipt of Federal money, or by title
II, because it is a function of a State or local government, must
make all of its programs accessible to persons with disabilities,
which includes physical access as well as modifications in the way
the test is administered, e.g., extended time, written
instructions, or assistance of a reader.  

     Many licensing, certification, and testing authorities are not
covered by section 504, because no Federal money is received; nor
are they covered by title II of the ADA because they are not State
or local agencies.  However, States often require the licenses
provided by such authorities in order for an individual to practice
a particular profession or trade.  Thus, the provision was included
in the ADA in order to assure that persons with disabilities are
not foreclosed from educational, professional, or trade
opportunities because an examination or course is conducted in an
inaccessible site or without needed modifications.

      As indicated in the "Application" section of this part
({36.102), {36.309 applies to any private entity that offers the
specified types of examinations or courses.  This is consistent
with section 309 of the Americans with Disabilities Act, which
states that the requirements apply to "any person" offering
examinations or courses.

     The Department received a large number of comments on this
section, reflecting the importance of ensuring that the key
gateways to education and employment are open to individuals with
disabilities.  The most frequent comments were objections to the
fundamental alteration and undue burden provisions in {{36.309
(b)(3) and (c)(3) and to allowing courses and examinations to be
provided through alternative accessible arrangements, rather than
in an integrated setting.

     Although section 309 of the Act does not refer to a
fundamental alteration or undue burden limitation, those
limitations do appear in section 302(b)(2)(A)(iii) of the Act,
which establishes the obligation of public accommodations to
provide auxiliary aids and services.  The Department, therefore,
included it in the paragraphs of {36.309 requiring the provision of
auxiliary aids.  One commenter argued that similar limitations
should apply to all of the requirements of {36.309, but the
Department did not consider this extension appropriate.  

     Commenters who objected to permitting "alternative accessible
arrangements" argued that such arrangements allow segregation and
should not be permitted, unless they are the least restrictive
available alternative, for example, for someone who cannot leave
home.  Some commenters made a distinction between courses, where
interaction is an important part of the educational experience, and
examinations, where it may be less important.  Because the statute
specifically authorizes alternative accessible arrangements as a
method of meeting the requirements of section 309, the Department
has not adopted this suggestion.  The Department notes, however,
that, while examinations of the type covered by {36.309 may not be
covered elsewhere in the regulation, courses will generally be
offered in a "place of education," which is included in the
definition of "place of public accommodation" in {36.104, and,
therefore, will be subject to the integrated setting requirement of
{36.203.

     Section 36.309(b) sets forth specific requirements for
examinations.  Examinations covered by this section would include
a bar exam or the Scholastic Aptitude Test prepared by the
Educational Testing Service.  Paragraph (b)(l) is adopted from the
Department of Education's section 504 regulation on admission tests
to postsecondary educational programs (34 CFR 104.42(b)(3)). 
Paragraph (b)(1)(i) requires that a private entity offering an
examination covered by the section must assure that the examination
is selected and administered so as to best ensure that the
examination accurately reflects an individual's aptitude or
achievement level or other factor the examination purports to
measure, rather than reflecting the individual's impaired sensory,
manual, or speaking skills (except where those skills are the
factors that the examination purports to measure).  
     Paragraph (b)(1)(ii) requires that any examination specially
designed for individuals with disabilities be offered as often and
in as timely a manner as other examinations.  Some commenters noted
that persons with disabilities may be required to travel long
distances when the locations for examinations for individuals with
disabilities are limited, for example, to only one city in a State
instead of a variety of cities.  The Department has therefore
revised this paragraph to add a requirement that such examinations
be offered at locations that are as convenient as the location of
other examinations.   

     Commenters representing organizations that administer tests
wanted to be able to require individuals with disabilities to
provide advance notice and appropriate documentation, at the
applicants' expense, of their disabilities and of any modifications
or aids that would be required.  The Department agrees that such
requirements are permissible, provided that they are not
unreasonable and that the deadline for such notice is no earlier
than the deadline for others applying to take the examination. 
Requiring individuals with disabilities to file earlier
applications would violate the requirement that examinations
designed for individuals with disabilities be offered in as timely
a manner as other examinations.  

     Examiners may require evidence that an applicant is entitled
to modifications or aids as required by this section, but requests
for documentation must be reasonable and must be limited to the
need for the modification or aid requested.  Appropriate
documentation might include a letter from a physician or other
professional, or evidence of a prior diagnosis or accommodation,
such as eligibility for a special education program.  The applicant
may be required to bear the cost of providing such documentation,
but the entity administering the examination cannot charge the
applicant for the cost of any modifications or auxiliary aids, such
as interpreters, provided for the examination. 

     Paragraph (b)(1)(iii) requires that examinations be
administered in facilities that are accessible to individuals with
disabilities or alternative accessible arrangements are made.

     Paragraph (b)(2) gives examples of modifications to
examinations that may be necessary in order to comply with this
section.  These may include providing more time for completion 
of the examination or a change in the manner of giving the
examination, e.g., reading the examination to the individual.  

     Paragraph (b)(3) requires the provision of auxiliary 
aids and services, unless the private entity offering the
examination can demonstrate that offering a particular auxiliary
aid would fundamentally alter the examination or result in an undue
burden.  Examples of auxiliary aids include taped examinations,
interpreters or other effective methods of making aurally delivered
materials available to individuals with hearing impairments,
readers for individuals with visual impairments or learning
disabilities, and other similar services and actions.  The
suggestion that individuals with learning disabilities may need
readers is included, although it does not appear in the Department
of Education regulation, because, in fact, some individuals with
learning disabilities have visual perception problems and would
benefit from a reader.

     Many commenters pointed out the importance of ensuring that
modifications provide the individual with a disability an equal
opportunity to demonstrate his or her knowledge or ability.  For
example, a reader who is unskilled or lacks knowledge of specific
terminology used in the examination may be unable to convey the
information in the questions or to follow the applicant's
instructions effectively.  Commenters pointed out that, for persons
with visual impairments who read Braille, Braille provides the
closest functional equivalent to a printed test.  The Department
has, therefore, added Brailled examinations to the examples of
auxiliary aids and services that may be required.  For similar
reasons, the Department also added to the list of examples of
auxiliary aids and services large print examinations and answer
sheets; "qualified" readers; and transcribers to write answers.

     A commenter suggested that the phrase "fundamentally alter the
examination" in this paragraph of the proposed rule be revised to
more accurately reflect the function affected.  In the final rule
the Department has substituted the phrase "fundamentally alter the
measurement of the skills or knowledge the examination is intended
to test." 

     Paragraph (b)(4) gives examples of alternative accessible
arrangements.  For instance, the private entity might 
be required to provide the examination at an individual's home with
a proctor.  Alternative arrangements must provide conditions for
individuals with disabilities that are comparable to the conditions
under which other individuals take the examinations.  In other
words, an examination cannot be offered to an individual with a
disability in a cold, poorly lit basement, if other individuals are
given the examination in a warm, well lit classroom.

     Some commenters who provide examinations for licensing or
certification for particular occupations or professions urged that
they be permitted to refuse to provide modifications or aids for
persons seeking to take the examinations if those individuals,
because of their disabilities, would be unable to perform the
essential functions of the profession or occupation for which the
examination is given, or unless the disability is reasonably
determined in advance as not being an obstacle to certification. 
The Department has not changed its rule based on this comment.  An
examination is one stage of a licensing or certification process. 
An individual should not be barred from attempting to pass that
stage of the process merely because he or she might be unable to
meet other requirements of the process.  If the examination is not
the first stage of the qualification process, an applicant may be
required to complete the earlier stages prior to being admitted to
the examination.  On the other hand, the applicant may not be
denied admission to the examination on the basis of doubts about
his or her abilities to meet requirements that the examination is
not designed to test. 

     Paragraph (c) sets forth specific requirements for courses. 
Paragraph (c)(1) contains the general rule that any course covered
by this section must be modified to ensure that the place and
manner in which the course is given is accessible.  Paragraph
(c)(2) gives examples of possible modifications that might be
required, including extending the time permitted for completion of
the course, permitting oral rather than written delivery of an
assignment by a person with a visual impairment, or adapting the
manner in which the course is conducted (i.e., providing cassettes
of class handouts to an individual with a visual impairment).  In
response to comments, the Department has added to the examples in
paragraph (c)(2) specific reference to distribution of course
materials.  If course materials are published and available from
other sources, the entity offering the course may give advance
notice of what materials will be used so as to allow an individual
to obtain them in Braille or on tape, but materials provided by the
course offerer must be made available in alternative formats for
individuals with disabilities.

     In language similar to that of paragraph (b), paragraph (c)(3)
requires auxiliary aids and services, unless a fundamental
alteration or undue burden would result, and paragraph (c)(4)
requires that courses be administered in accessible facilities. 
Paragraph (c)(5) gives examples of alternative accessible
arrangements.  These may include provision of the course through
videotape, cassettes, or prepared notes.  Alternative arrangements
must provide comparable conditions to those provided to others,
including similar lighting, room temperature, and the like.  An
entity offering a variety of courses, to fulfill continuing
education requirements for a profession, for example, may not limit
the selection or choice of courses available to individuals with
disabilities.

Section 36.310 Transportation provided by public accommodations.

     Section 36.310 contains specific provisions relating to public
accommodations that provide transportation to their clients or
customers.  This section has been substantially revised in order to
coordinate the requirements of this section with the requirements
applicable to these transportation systems that will be contained
in the regulations issued by the Secretary of Transportation
pursuant to section 306 of the ADA, to be codified at 49 CFR Part
37.  The Department notes that, although the responsibility for
issuing regulations applicable to transportation systems operated
by public accommodations is divided between this Department and the
Department of Transportation, enforcement authority is assigned
only to the Department of Justice.

     The Department received relatively few comments on this
section of the proposed rule.  Most of the comments addressed 
issues that are not specifically addressed in this part, such as
the standards for accessible vehicles and the procedure for
determining whether equivalent service is provided.  Those
standards will be contained in the regulation issued by the
Department of Transportation.  Other commenters raised questions
about the types of transportation that will be subject to this
section.  In response to these inquiries, the Department has
revised the list of examples contained in the regulation.

     Paragraph (a)(1) states the general rule that covered public
accommodations are subject to all of the specific provisions of
subparts B, C, and D, except as provided in {36.310.  Examples of
operations covered by the requirements are listed in paragraph
(a)(2).  The stated examples include hotel and motel airport
shuttle services, customer shuttle bus services operated by private
companies and shopping centers, student transportation, and shuttle
operations of recreational facilities such as stadiums, zoos,
amusement parks, and ski resorts.  This brief list is not
exhaustive.  The section applies to any fixed route or demand
responsive transportation system operated by a public accommodation
for the benefit of its clients or customers.  The section does not
apply to transportation services provided only to employees. 
Employee transportation will be subject to the regulations issued
by the Equal Employment Opportunity Commission to implement title
I of the Act.  However, if employees and customers or clients are
served by the same transportation system, the provisions of this
section will apply.

     Paragraph (b) specifically provides that a public
accommodation shall remove transportation barriers in existing
vehicles to the extent that it is readily achievable to do so,
but that the installation of hydraulic or other lifts is not
required.

     Paragraph (c) provides that public accommodations subject to
this section shall comply with the requirements for transportation
vehicles and systems contained in the regulations issued by the
Secretary of Transportation.

Subpart D -- New Construction and Alterations.

     Subpart D implements section 303 of the Act, which requires
that newly constructed or altered places of public accommodation or
commercial facilities be readily accessible to and usable by
individuals with disabilities.  This requirement contemplates a
high degree of convenient access.  It is intended to ensure that
patrons and employees of places of public accommodation and
employees of commercial facilities are able to get to, enter, and
use the facility.

     Potential patrons of places of public accommodation, such as
retail establishments, should be able to get to a store, get into
the store, and get to the areas where goods are being provided. 
Employees should have the same types of access, although those
individuals require access to and around the employment area as
well as to the area in which goods and services are provided.  

     The ADA is geared to the future -- its goal being that, over
time, access will be the rule, rather than the exception.  Thus,
the Act only requires modest expenditures, of the type addressed in
{36.304 of this part, to provide access to existing facilities not
otherwise being altered, but requires all new construction and
alterations to be accessible.

     The Act does not require new construction or alterations; it
simply requires that, when a public accommodation or other private
entity undertakes the construction or alteration of a facility
subject to the Act, the newly constructed or altered facility must
be made accessible.  This subpart establishes the requirements for
new construction and alterations.

     As explained under the discussion of the definition of
"facility," {36.104, pending development of specific requirements,
the Department will not apply this subpart to places of public
accommodation located in mobile units, boats, or other conveyances.

Section 36.401  New construction.

General

     Section 36.401 implements the new construction requirements of
the ADA.  Section 303(a)(l) of the Act provides that discrimination
for purposes of section 302(a) of the Act includes a failure to
design and construct facilities for first occupancy later than 30
months after the date of enactment (i.e., after January 26, 1993)
that are readily accessible to and usable by individuals with
disabilities.  

     Paragraph 36.40l(a)(l) restates the general requirement for
accessible new construction.  The proposed rule stated that "any
public accommodation or other private entity responsible for design
and construction" must ensure that facilities conform to this
requirement.  Various commenters suggested that the proposed
language was not consistent with the statute because it substituted
"private entity responsible for design and construction" for the
statutory language; because it did not address liability on the
part of architects, contractors, developers, tenants, owners, and
other entities; and because it limited the liability of entities
responsible for commercial facilities.  In response, the Department
has revised this paragraph to repeat the language of section 303(a)
of the ADA.  The Department will interpret this section in a manner
consistent with the intent of the statute and with the nature of
the responsibilities of the various entities for design, for
construction, or for both.  

Designed and constructed for first occupancy

     According to paragraph (a)(2), a facility is subject to the
new construction requirements only if a completed application for
a building permit or permit extension is filed after January 26,
1992, and the facility is occupied after January 26, 1993.  

     The proposed rule set forth for comment two alternative ways
by which to determine what facilities are subject to the Act and
what standards apply.  Paragraph (a)(2) of the final rule is a
slight variation on Option One in the proposed rule.   The reasons
for the Department's choice of Option One are discussed later in
this section.

     Paragraph (a)(2) acknowledges that Congress did not
contemplate having actual occupancy be the sole trigger for the
accessibility requirements, because the statute prohibits a failure
to "design and construct for first occupancy," rather than
requiring accessibility in facilities actually occupied after a
particular date.

     The commenters overwhelmingly agreed with the Department's
proposal to use a date certain; many cited the reasons given in the
preamble to the proposed rule.  First, it is helpful for designers
and builders to have a fixed date for accessible design, so that
they can determine accessibility requirements early in the planning
and design stage.  It is difficult to determine accessibility
requirements in anticipation of the actual date of first occupancy
because of unpredictable and uncontrollable events (e.g., strikes
affecting suppliers or labor, or natural disasters) that may delay
occupancy.  To redesign or reconstruct portions of a facility if it
begins to appear that occupancy will be later than anticipated
would be quite costly.  A fixed date also assists those responsible
for enforcing, or monitoring compliance with, the statute, and
those protected by it.

     The Department considered using as a trigger date for
application of the accessibility standards the date on which a
permit is granted.  The Department chose instead the date on which
a complete permit application is certified as received by the
appropriate government entity.  Almost all commenters agreed with
this choice of a trigger date.  This decision is based partly on
information that several months or even years can pass between
application for a permit and receipt of a permit.  Design is
virtually complete at the time an application is complete (i.e.,
certified to contain all the information required by the State,
county, or local government).  After an application is filed,
delays may occur before the permit is granted due to numerous
factors (not necessarily relating to accessibility): for example,
hazardous waste discovered on the property, flood plain
requirements, zoning disputes, or opposition to the project from
various groups.  These factors should not require redesign for
accessibility if the application was completed before January 26,
1992.  However, if the facility must be redesigned for other
reasons, such as a change in density or environmental preservation,
and the final permit is based on a new application, the rule would
require accessibility if that application was certified complete
after January 26, 1992.  

     The certification of receipt of a complete application for a
building permit is an appropriate point in the process because
certifications are issued in writing by governmental authorities. 
In addition, this approach presents a clear and objective standard.

     However, a few commenters pointed out that in some
jurisdictions it is not possible to receive a "certification" that
an application is complete, and suggested that in those cases the
fixed date should be the date on which an application for a permit
is received by the government agency.  The Department has included
such a provision in {36.401(a)(2)(i).  

     The date of January 26, 1992, is relevant only with respect to
the last application for a permit or permit extension for a
facility.  Thus, if an entity has applied for only a "foundation"
permit, the date of that permit application has no effect, because
the entity must also apply for and receive a permit at a later date
for the actual superstructure.  In this case, it is the date of the
later application that would control, unless construction is not
completed within the time allowed by the permit, in which case a
third permit would be issued and the date of the application for
that permit would be determinative for purposes of the rule.

Choice of Option One for defining "designed and constructed for
first occupancy"

     Under the option the Department has chosen for determining
applicability of the new construction standards, a building would
be considered to be "for first occupancy" after January 26, 1993,
only (1) if the last application for a building permit or permit
extension for the facility is certified to be complete (or, in some
jurisdictions, received) by a State, county, or local government
after January 26, 1992, and (2) if the first certificate of
occupancy is issued after January 26, 1993.  The Department also
asked for comment on an Option Two, which would have imposed new
construction requirements if a completed application for a building
permit or permit extension was filed after the enactment of the ADA
(July 26, 1990), and the facility was occupied after January 26,
1993.  

     The request for comment on this issue drew a large number of
comments expressing a wide range of views.   Most business groups
and some disability rights groups favored Option One, and some
business groups and most disability rights groups favored Option
Two.  Individuals and government entities were equally divided;
several commenters proposed other options.  

     Those favoring Option One pointed out that it is more
reasonable in that it allows time for those subject to the new
construction requirements to anticipate those requirements and to
receive technical assistance pursuant to the Act.  Numerous
commenters said that time frames for designing and constructing
some types of facilities (for example, health care facilities) 
can range from two to four years or more.  They expressed concerns
that Option Two, which would apply to some facilities already under
design or construction as of the date the Act was signed, and to
some on which construction began shortly after enactment, could
result in costly redesign or reconstruction of those facilities. 
In the same vein, some Option One supporters found Option Two
objectionable on due process grounds.  In their view, Option Two
would mean that in July 1991 (upon issuance of the final DOJ rule)
the responsible entities would learn that ADA standards had been in
effect since July 26, 1990, and this would amount to retroactive
application of standards.  Numerous commenters characterized Option
Two as having no support in the statute and Option One as being
more consistent with congressional intent.

     Those who favored Option Two pointed out that it would include
more facilities within the coverage of the new construction
standards.  They argued that because similar accessibility
requirements are in effect under State laws, no hardship would be
imposed by this option.  Numerous commenters said that hardship
would also be eliminated in light of their view that the ADA
requires compliance with the Uniform Federal Accessibility
Standards (UFAS) until issuance of DOJ standards.  Those supporting
Option Two claimed that it was more consistent with the statute and
its legislative history.

     The Department has chosen Option One rather than Option Two,
primarily on the basis of the language of three relevant sections
of the statute.  First, section 303(a) requires compliance with
accessibility standards set forth, or incorporated by reference in,
regulations to be issued by the Department of Justice.  Standing
alone, this section cannot be read to require compliance with the
Department's standards before those standards are issued (through
this rulemaking).  Second, according to section 310 of the statute,
section 303 becomes effective on January 26, 1992.  Thus, section
303 cannot impose requirements on the design of buildings before
that date.  Third, while section 306(d) of the Act requires
compliance with UFAS if final regulations have not been issued,
that provision cannot reasonably be read to take effect until July
26, 1991, the date by which the Department of Justice must issue
final regulations under title III. 

     Option Two was based on the premise that the interim standards
in section 306(d) take effect as of the ADA's enactment (July 26,
1990), rather than on the date by which the Department of Justice
regulations are due to be issued (July 26, 1991).  The initial
clause of section 306(d)(1) itself is silent on this question:

          If final regulations have not been issued
          pursuant to this section, for new construction
          for which a . . . building permit is obtained
          prior to the issuance of final regulations . .
          . [interim standards apply].

     The approach in Option Two relies partly on the language of
section 310 of the Act, which provides that section 306, the
interim standards provision, takes effect on the date of enactment. 
Under this interpretation the interim standards provision would
prevail over the operative provision, section 303, which requires
that new construction be accessible and which becomes effective
January 26, 1992.  This approach would also require construing the
language of section 306(d)(1) to take effect before the
Department's standards are due to be issued.  The preferred reading
of section 306 is that it would require that, if the Department's
final standards had not been issued by July 26, 1991, UFAS would
apply to certain buildings until such time as the Department's
standards were issued.
General substantive requirements of the new construction provisions

     The rule requires, as does the statute, that covered newly
constructed facilities be readily accessible to and usable by
individuals with disabilities.  The phrase "readily accessible to
and usable by individuals with disabilities" is a term that, in
slightly varied formulations, has been used in the Architectural
Barriers Act of 1968, the Fair Housing Act, the regulations
implementing section 504 of the Rehabilitation Act of 1973, and
current accessibility standards.  It means, with respect to a
facility or a portion of a facility, that it can be approached,
entered, and used by individuals with disabilities (including
mobility, sensory, and cognitive impairments) easily and
conveniently.  A facility that is constructed to meet the
requirements of the rule's accessibility standards will be
considered readily accessible and usable with respect to
construction.  To the extent that a particular type or element of
a facility is not specifically addressed by the standards, the
language of this section is the safest guide.

     A private entity that renders an "accessible" building
inaccessible in its operation, through policies or practices, may
be in violation of section 302 of the Act.  For example, a private
entity can render an entrance to a facility inaccessible by keeping
an accessible entrance open only during certain hours (whereas the
facility is available to others for a greater length of time).  A
facility could similarly be rendered inaccessible if a person with
disabilities is significantly limited in her or his choice of a
range of accommodations.

     Ensuring access to a newly constructed facility will include
providing access to the facility from the street or parking lot, to
the extent the responsible entity has control over the route from
those locations.  In some cases, the private entity will have no
control over access at the point where streets, curbs, or sidewalks
already exist, and in those instances the entity is encouraged to
request modifications to a sidewalk, including installation of curb
cuts, from a public entity responsible for them.  However, as some
commenters pointed out, there is no obligation for a private entity
subject to title III of the ADA to seek or ensure compliance by a
public entity with title II.  Thus, although a locality may have an
obligation under title II of the Act to install curb cuts at a
particular location, that responsibility is separate from the
private entity's title III obligation, and any involvement by a
private entity in seeking cooperation from a public entity is
purely voluntary in this context.

Work areas

     Proposed paragraph 36.401(b) addressed access to employment
areas, rather than to the areas where goods or services are being
provided.  The preamble noted that the proposed paragraph provided
guidance for new construction and alterations until more specific
guidance was issued by the ATBCB and reflected in this Department's
regulation.  The entire paragraph has been deleted from this
section in the final rule.  The concepts of paragraphs (b) (1),
(2), and (5) of the proposed rule are included, with modifications
and expansion, in ADAAG.  Paragraphs (3) and (4) of the proposed
rule, concerning fixtures and equipment, are not included in the
rule or in ADAAG.

     Some commenters asserted that questions relating to new
construction and alterations of work areas should be addressed by
the EEOC under title I, as employment concerns.  However, the
legislative history of the statute clearly indicates that the new
construction and alterations requirements of title III were
intended to ensure accessibility of new facilities to all
individuals, including employees.  The language of section 303
sweeps broadly in its application to all public accommodations and
commercial facilities.  EEOC's title I regulations will address
accessibility requirements that come into play when "reasonable
accommodation" to individual employees or applicants with
disabilities is mandated under title I.

     The issues dealt with in proposed {{36.401(b)(1) and (2) are
now addressed in ADAAG {4.1.1(3).  The Department's proposed
paragraphs would have required that areas that will be used only by
employees as work stations be constructed so that individuals with
disabilities could approach, enter, and exit the areas.  They would
not have required that all individual work stations be constructed
or equipped (for example, with shelves that are accessible or
adaptable) to be accessible.  This approach was based on the theory
that, as long as an employee with disabilities could enter the
building and get to and around the employment area, modifications
in a particular work station could be instituted as a "reasonable
accommodation" to that employee if the modifications were necessary
and they did not constitute an undue hardship. 

     Almost all of the commenters agreed with the proposal to
require access to a work area but not to require accessibility of
each individual work station.  This principle is included in ADAAG
4.1.1(3).  Several of the comments related to the requirements of
the proposed ADAAG and have been addressed in the accessibility
standards.  

     Proposed paragraphs (b)(3) and (4) would have required that
consideration be given to placing fixtures and equipment at
accessible heights in the first instance, and to purchasing new
equipment and fixtures that are adjustable.  These paragraphs have
not been included in the final rule because the rule in most
instances does not establish accessibility standards for purchased
equipment.  (See discussion elsewhere in the preamble of proposed
{36.309.)  While the Department encourages entities to consider
providing accessible or adjustable fixtures and equipment for
employees, this rule does not require them to do so.

     Paragraph (b)(5) of proposed {36.40l clarified that proposed
paragraph (b) did not limit the requirement that employee areas
other than individual work stations must be accessible.  For
example, areas that are employee "common use" areas and are not
solely used as work stations (e.g., employee lounges, cafeterias,
health units, exercise facilities) are treated no differently under
this regulation than other parts of a building; they must be
constructed or altered in compliance with the accessibility
standards.  This principle is not stated in {36.401 but is implicit
in the requirements of this section and ADAAG.

Commercial facilities in private residences

     Section 36.401(b) of the final rule is a new provision
relating to commercial facilities located in private residences. 
The proposed rule addressed these requirements in the preamble to
{36.207, "Places of public accommodation located in private
residences."  The preamble stated that the approach for commercial
facilities would be the same as that for places of public
accommodation, i.e., those portions used exclusively as a
commercial facility or used as both a commercial facility and for
residential purposes would be covered.  Because commercial
facilities are only subject to new construction and alterations
requirements, however, the covered portions would only be subject
to subpart D.  This approach is reflected in {36.401(b)(1).

     The Department is aware that the statutory definition of
"commercial facility" excludes private residences because they are
"expressly exempted from coverage under the Fair Housing Act of
1968, as amended."  However, the Department interprets that
exemption as applying only to facilities that are exclusively
residential.  When a facility is used as both a residence and a
commercial facility, the exemption does not apply.

     Paragraph (b)(2) is similar to the new paragraph (b) under
{36.207, "Places of public accommodation located in private
residences."  The paragraph clarifies that the covered portion
includes not only the space used as a commercial facility, but also
the elements used to enter the commercial facility, e.g., the
homeowner's front sidewalk, if any; the doorway; the hallways; the
restroom, if used by employees or visitors of the commercial
facility; and any other portion of the residence, interior or
exterior, used by employees or visitors of the commercial facility.

     As in the case of public accommodations located in private
residences, the new construction standards only apply to the extent
that a portion of the residence is designed or intended for use as
a commercial facility.  Likewise, if a homeowner alters a portion
of his home to convert it to a commercial facility, that work must
be done in compliance with the alterations standards in the
Appendix A.

Structural impracticability

     Proposed {36.401(c) is included in the final rule with minor
changes.  It details a statutory exception to the new construction
requirement: the requirement that new construction be accessible
does not apply where an entity can demonstrate that it is
structurally impracticable to meet the requirements of the
regulation.  This provision is also included in ADAAG, at
{4.1.1(5)(a).

     Consistent with the legislative history of the ADA, this
narrow exception will apply only in rare and unusual circumstances
where unique characteristics of terrain make accessibility
unusually difficult.  Such limitations for topographical problems
are analogous to an acknowledged limitation in the application of
the accessibility requirements of the Fair Housing Amendments Act
(FHAA) of 1988.   

     Almost all commenters supported this interpretation.  Two
commenters argued that the DOJ requirement is too limiting and
would not exempt some buildings that should be exempted because of
soil conditions, terrain, and other unusual site conditions.  These
commenters suggested consistency with HUD'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 Department is aware of the provisions in HUD's guidelines,
which were issued on March 6, 1991, after passage of the ADA and
publication of the Department's proposed rule.  The approach taken
in these guidelines, which apply to different types of construction
and implement different statutory requirements for new
construction, does not bind this Department in regulating under the
ADA.  The Department has included in the final rule the substance
of the proposed provision, which is faithful to the intent of the
statute, as expressed in the legislative history.  (See Senate
report at 70-71; Education and Labor report at 120.)

     The limited structural impracticability exception means that
it is acceptable to deviate from accessibility requirements only
where unique characteristics of terrain prevent the incorporation
of accessibility features and 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.

     This exception to accessibility requirements should not be
applied to situations in which a facility is located in "hilly"
terrain or on a plot of land upon which there are steep grades. In
such circumstances, accessibility can be achieved without
destroying the physical integrity of a structure, and is required
in the construction of new facilities.

     Some commenters asked for clarification concerning when and
how to apply the ADA rules or the Fair Housing Accessibility
Guidelines, especially when a facility may be subject to both
because of mixed use.  Guidance on this question is provided in the
discussion of the definitions of place of public accommodation and
commercial facility.  With respect to the structural
impracticability exception, a mixed-use facility could not take
advantage of the Fair Housing exemption, to the extent that it is
less stringent than the ADA exemption, except for those portions of
the facility that are subject only to the Fair Housing Act. 

     As explained in the preamble to the proposed rule, in those
rare circumstances in which it is structurally impracticable to
achieve full compliance with accessibility requirements under the
ADA, places of public accommodation and commercial facilities
should still be designed and constructed to incorporate
accessibility features to the extent that the features are
structurally practicable.  The accessibility requirements should
not be viewed as an all-or-nothing proposition in such
circumstances.

     If it is structurally impracticable for a facility in its
entirety to be readily accessible to and usable by people with
disabilities, then those portions that can be made accessible
should be made accessible.  If a building cannot be constructed in
compliance with the full range of accessibility requirements
because of structural impracticability, then it should still
incorporate those features that are structurally practicable.  If
it is structurally impracticable to make a particular facility
accessible to persons who have particular types of disabilities, it
is still appropriate to require it to be made accessible to persons
with other types of disabilities.  For example, a facility that is
of necessity built on stilts and cannot be made accessible to
persons who use wheelchairs because it is structurally
impracticable to do so, must be made accessible for individuals
with vision or hearing impairments or other kinds 
of disabilities.

Elevator exemption

     Section 36.401(d) implements the "elevator exemption" for new
construction in section 303(b) of the ADA.  The elevator exemption
is an exception to the general requirement that new facilities be
readily accessible to and usable by individuals with disabilities. 
Generally, an elevator is the most common way to provide
individuals who use wheelchairs "ready access" to floor levels
above or below the ground floor of a multi-story building. 
Congress, however, chose not to require elevators in new small
buildings, that is, those with less than three stories or less that
3000 square feet per story.  In buildings eligible for the
exemption, therefore, "ready access" from the building entrance to
a floor above or below the ground floor is not required, because
the statute does not require that an elevator be installed in such
buildings.  The elevator exemption does not apply, however, to a
facility housing a shopping center, a shopping mall, or the
professional office of a health care provider, or other categories
of facilities as determined by the Attorney General.  For example,
a new office building that will have only two stories, with no
elevator planned, will not be required to have an elevator, even if
each story has 20,000 square feet.  In other words, having either
less than 3000 square feet per story or less than three stories
qualifies a facility for the exemption; it need not qualify for the
exemption on both counts.  Similarly, a facility that has five
stories of 2800 square feet each qualifies for the exemption.  If
a facility has three or more stories at any point, it is not
eligible for the elevator exemption unless all the stories are less
than 3000 square feet.  

     The terms "shopping center or shopping mall" and "professional
office of a health care provider" are defined in this section. 
They are substantively identical to the definitions included in the
proposed rule in {36.104, "Definitions."  They have been moved to
this section because, as commenters pointed out, they are relevant
only for the purposes of the elevator exemption, and inclusion in
the general definitions section could give the incorrect impression
that an office of a health care provider is not covered as a place
of public accommodation under other sections of the rule, unless
the office falls within the definition.  

     For purposes of {36.401, a "shopping center or shopping mall"
is (1) a building housing five or more sales or rental
establishments, or (2) a series of buildings on a common site,
either under common ownership or common control or developed either
as one project or as a series of related projects, housing five or
more sales or rental establishments.  The term "shopping center or
shopping mall" only includes floor levels containing at least one
sales or rental establishment, or any floor level that was designed
or intended for use by at least one sales or rental establishment. 


     Any sales or rental establishment of the type that is included
in paragraph (5) of the definition of "place of public
accommodation" (for example, a bakery, grocery store, clothing
store, or hardware store) is considered a sales or rental
establishment for purposes of this definition; the other types of
public accommodations (e.g., restaurants, laundromats, banks,
travel services, health spas) are not.  

     In the preamble to the proposed rule, the Department sought
comment on whether the definition of "shopping center or mall"
should be expanded to include any of these other types of public
accommodations.  The Department also sought comment on whether a
series of buildings should fall within the definition only if they
are physically connected.

     Most of those responding to the first question (overwhelmingly
groups representing people with disabilities, or individual
commenters) urged that the definition encompass more places of
public accommodation, such as restaurants, motion picture houses,
laundromats, dry cleaners, and banks.  They pointed out that often
it is not known what types of establishments will be tenants in a
new facility.  In addition, they noted that malls are advertised as
entities, that their appeal is in the "package" of services offered
to the public, and that this package often includes the additional
types of establishments mentioned.

     Commenters representing business groups sought to exempt 
banks, travel services, grocery stores, drug stores, and
freestanding retail stores from the elevator requirement.  They
based this request on the desire to continue the practice in some
locations of incorporating mezzanines housing administrative
offices, raised pharmacist areas, and raised areas in the front of
supermarkets that house safes and are used by managers to oversee
operations of check-out aisles and other functions.  Many of these
concerns are adequately addressed by ADAAG.  Apart from those
addressed by ADAAG, the Department sees no reason to treat a
particular type of sales or rental establishment differently from
any other.  Although banks and travel services are not included as
"sales or rental establishments," because they do not fall under
paragraph (5) of the definition of place of public accommodation,
grocery stores and drug stores are included.

     The Department has declined to include places of public
accommodation other than sales or rental establishments in the
definition.  The statutory definition of "public accommodation"
(section 301 (7)) lists 12 types of establishments that are
considered public accommodations.  Category (E) includes "a bakery,
grocery store, clothing store, hardware store, shopping center, or
other sales or rental establishment."  This arrangement suggests
that it is only these types of establishments that would make up a
shopping center for purposes of the statute.  To include all types
of places of public accommodation, or those from 6 or 7 of the
categories, as commenters suggest, would overly limit  the elevator
exemption; the universe of facilities covered by the definition of
"shopping center" could well exceed the number of multitenant
facilities not covered, which would render the exemption almost
meaningless.

     For similar reasons, the Department is retaining the
requirement that a building or series of buildings must house five
or more sales or rental establishments before it falls within the
definition of "shopping center."  Numerous commenters objected to
the number and requested that the number be lowered from five to
three or four.  Lowering the number in this manner would include an
inordinately large number of two-story multitenant buildings within
the category of those required to have elevators.  

     The responses to the question concerning whether a series of
buildings should be connected in order to be covered were varied. 
Generally, disability rights groups and some government agencies
said a series of buildings should not have to be connected, and
pointed to a trend in some areas to build shopping centers in a
garden or village setting.  The Department agrees that this design
choice should not negate the elevator requirement for new
construction.  Some business groups answered the question in the
affirmative, and some suggested a different definition of shopping
center.  For example, one commenter recommended the addition of a
requirement that the five or more establishments be physically
connected on the non-ground floors by a common pedestrian walkway
or pathway, because otherwise a series of stand-alone facilities
would have to comply with the elevator requirement, which would be
unduly burdensome and perhaps infeasible.  Another suggested use of
what it characterized as the standard industry definition: "a group
of retail stores and related business facilities, the whole
planned, developed, operated and managed as a unit."  While the
rule's definition would reach a series of related projects that are
under common control but were not developed as a single project,
the Department considers such a facility to be a shopping center
within the meaning of the statute.  However, in light of the
hardship that could confront a series of existing small stand-alone
buildings if elevators were required in alterations, the Department
has included a common access route in the definition of shopping
center or shopping mall for purposes of {36.404.

     Some commenters suggested that access to restrooms and other
shared facilities open to the public should be required even if
those facilities were not on a shopping floor.  Such a provision
with respect to toilet or bathing facilities is included in the
elevator exception in final ADAAG 4.1.3(5).  

     For purposes of this subpart, the rule does not distinguish
between a "shopping mall" (usually a building with a roofed-over
common pedestrian area serving more than one tenant in which a
majority of the tenants have a main entrance from the common
pedestrian area) and a "shopping center" (e.g., a "shopping
strip").  Any facility housing five or more of the types of sales
or rental establishments described, regardless of the number of
other types of places of public accommodation housed there (e.g.,
offices, movie theatres, restaurants), is a shopping center or
shopping mall.  

     For example, a two-story facility built for mixed-use
occupancy on both floors (e.g., by sales and rental establishments,
a movie theater, restaurants, and general office space) is a
shopping center or shopping mall if it houses five or more sales or
rental establishments.  If none of these establishments is located
on the second floor, then only the ground floor, which contains the
sales or rental establishments, would be a "shopping center or
shopping mall," unless the second floor was designed or intended
for use by at least one sales or rental establishment.  In
determining whether a floor was intended for such use, factors to
be considered include the types of establishments that first
occupied the floor, the nature of the developer's marketing
strategy, i.e., what types of establishments were sought, and
inclusion of any design features particular to rental and sales
establishments.

     A "professional office of a health care provider" is defined
as a location where a person or entity regulated by a State to
provide professional services related to the physical or mental
health of an individual makes such services available to the
public.  In a two-story development that houses health care
providers only on the ground floor, the "professional office of a
health care provider" is limited to the ground floor unless the
second floor was designed or intended for use by a health care
provider.  In determining if a floor was intended for such use,
factors to be considered include whether the facility was
constructed with special plumbing, electrical, or other features
needed by health care providers, whether the developer marketed the
facility as a medical office center, and whether any of the
establishments that first occupied the floor was, in fact, a health
care provider.

     In addition to requiring that a building that is a shopping
center, shopping mall, or the professional office of a health care
provider have an elevator regardless of square footage or number of
floors, the ADA (section 303(b)) provides that the Attorney General
may determine that a particular category of facilities requires the
installation of elevators based on the usage of the facilities. 
The Department, as it proposed to do, has added to the nonexempt
categories terminals, depots, or other stations used for specified
public transportation, and airport passenger terminals.  Numerous
commenters in all categories endorsed this proposal; none opposed
it.  It is not uncommon for an airport passenger terminal or train
station, for example, to have only two floors, with gates on both
floors.  Because of the significance of transportation, because a
person with disabilities could be arriving or departing at any
gate, and because inaccessible facilities could result in a total
denial of transportation services, it is reasonable to require that
newly constructed transit facilities be accessible, regardless of
square footage or number of floors.  One comment suggested an
amendment that would treat terminals and stations similarly to
shopping centers, by requiring an accessible route only to those
areas used for passenger loading and unloading and for other
passenger services.  Paragraph (d)(2)(ii) has been modified
accordingly.

     Some commenters suggested that other types of facilities
(e.g., educational facilities, libraries, museums, commercial
facilities, and social service facilities) should be included in
the category of nonexempt facilities.  The Department has not found
adequate justification for including any other types of facilities
in the nonexempt category at this time.

     Section 36.401(d)(2) establishes the operative requirements
concerning the elevator exemption and its application to shopping
centers and malls, professional offices of health care providers,
transit stations, and airport passenger terminals.  Under the
rule's framework, it is necessary first to determine if a new
facility (including one or more buildings) houses places of public
accommodation or commercial facilities that are in the categories
for which elevators are required.  If so, and the facility is a
shopping center or shopping mall, or a professional office of a
health care provider, then any area housing such an office or a
sales or rental establishment or the professional office of a
health care provider is not entitled to the elevator exemption.

     The following examples illustrate the application of these
principles:

     1.  A shopping mall has an upper and a lower level.  There are
two "anchor stores" (in this case, major department stores at
either end of the mall, both with exterior entrances and an
entrance on each level from the common area).  In addition, there
are 30 stores (sales or rental establishments) on the upper level,
all of which have entrances from a common central area.  There are
30 stores on the lower level, all of which have entrances from a
common central area.  According to the rule, elevator access must
be provided to each store and to each level of the anchor stores. 
This requirement could be satisfied with respect to the 60 stores
through elevators connecting the two pedestrian levels, provided
that an individual could travel from the elevator to any other
point on that level (i.e., into any store through a common
pedestrian area) on an accessible path.    
     2.  A commercial (nonresidential) "townhouse" development is
composed of 20 two-story attached buildings.  The facility is
developed as one project, with common ownership, and the space will
be leased to retailers.  Each building has one accessible entrance
from a pedestrian walk to the first floor.  From that point, one
can enter a store on the first floor, or walk up a flight of stairs
to a store on the second floor.  All 40 stores must be accessible
at ground floor level or by accessible vertical access from that
level.  This does not mean, however, that 20 elevators must be
installed.  Access could be provided to the second floor by an
elevator from the pedestrian area on the lower level to an upper
walkway connecting all the areas on the second floor.

     3.  In the same type of development, it is planned that retail
stores will be housed exclusively on the ground floor, with only
office space (not professional offices of health care providers) on
the second.  Elevator access need not be provided to the second
floor because all the sales or rental establishments (the entities
that make the facility a shopping center) are located on an
accessible ground floor.

     4.  In the same type of development, the space is designed and
marketed as medical or office suites, or as a medical office
facility.  Accessible vertical access must be provided to all
areas, as described in example 2.

     Some commenters suggested that building owners who knowingly
lease or rent space to nonexempt places of public accommodation
would violate {36.401.  However, the Department does not consider
leasing or renting inaccessible space in itself to constitute a
violation of this part.  Nor does a change in use of a facility,
with no accompanying alterations (e.g., if a psychiatrist replaces
an attorney as a tenant in a second-floor office, but no
alterations are made to the office) trigger accessibility
requirements.  

     Entities cannot evade the requirements of this section by
constructing facilities in such a way that no story is intended to
constitute a "ground floor."   For example, if a private entity
constructs a building whose main entrance leads only to stairways
or escalators that connect with upper or lower floors, the
Department would consider at least one level of the facility a
ground story.

     The rule requires in {36.401(d)(3), consistent with the
proposed rule, that, even if a building falls within the elevator
exemption, the floor or floors other than the ground floor must
nonetheless be accessible, except for elevator access, to
individuals with disabilities, including people who use
wheelchairs.  This requirement applies to buildings that do not
house sales or rental establishments or the professional offices of
a health care provider as well as to those in which such
establishments or offices are all located on the ground floor.  In
such a situation, little added cost is entailed in making the
second floor accessible, because it is similar in structure and
floor plan to the ground floor.

     There are several reasons for this provision.  First, some
individuals who are mobility impaired may work on a building's
second floor, which they can reach by stairs and the use of
crutches; however, the same individuals, once they reach the second
floor, may then use a wheelchair that is kept in the office. 
Secondly, because the first floor will be accessible, there will be
little additional cost entailed in making the second floor, with
the same structure and generally the same floor plan, accessible. 
In addition, the second floor must be accessible to those persons
with disabilities who do not need elevators for level changes (for
example, persons with sight or hearing impairments and those with
certain mobility impairments).  Finally, if an elevator is
installed in the future for any reason, full access to the floor
will be facilitated.

     One commenter asserted that this provision goes beyond the
Department's authority under the Act, and disagreed with the
Department's claim that little additional cost would be entailed in
compliance.  However, the provision is taken directly from the
legislative history (see Education and Labor report at 114).

     One commenter said that where an elevator is not required,
platform lifts should be required.  Two commenters pointed out that
the elevator exemption is really an exemption from the requirement
for providing an accessible route to a second floor not served by
an elevator.  The Department agrees with the latter comment.  Lifts
to provide access between floors are not required in buildings that
are not required to have elevators.  This point is specifically
addressed in the appendix to ADAAG ({4.1.3(5)).  ADAAG also
addresses in detail the situations in which lifts are permitted or
required.

Section 36.402  Alterations.

     Sections 36.402-36.405 implement section 303(a)(2) of the Act,
which requires that alterations to existing facilities be made in
a way that ensures that the altered portion is readily accessible
to and usable by individuals with disabilities.  This part does not
require alterations; it simply provides that when alterations are
undertaken, they must be made in a manner that provides access.

     Section 36.402(a)(1) provides that any alteration to a place
of public accommodation or a commercial facility, after January 26,
1992, shall be made so as to ensure that, to the maximum extent
feasible, the altered portions of the facility are readily
accessible to and usable by individuals with disabilities,
including individuals who use wheelchairs.  

     The proposed rule provided that an alteration would be deemed
to be undertaken after January 26, 1992, if the physical alteration
of the property is in progress after that date.  Commenters pointed
out that this provision would, in some cases, produce an unjust
result by requiring the redesign or retrofitting of projects
initiated before this part established the ADA accessibility
standards.  The Department agrees that the proposed rule would, in
some instances, unfairly penalize projects that were substantially
completed before the effective date.  Therefore, paragraph (a)(2)
has been revised to specify that an alteration will be deemed to be
undertaken after January 26, 1992, if the physical alteration of
the property begins after that date.  As a matter of
interpretation, the Department will construe this provision to
apply to alterations that require a permit from a State, County or
local government, if physical alterations pursuant to the terms of
the permit begin after January 26, 1992.  The Department recognizes
that this application of the effective date may require redesign of
some facilities that were planned prior to the publication of this
part, but no retrofitting will be required of facilities on which
the physical alterations were initiated prior to the effective date
of the Act.  Of course, nothing in this section in any way alters
the obligation of any facility to remove architectural barriers in
existing facilities to the extent that such barrier removal is
readily achievable.

     Paragraph (b) provides that, for the purposes of this part, an
"alteration" is a change to a place of public accommodation or a
commercial facility that affects or could affect the usability of
the building or facility or any part thereof.  One commenter
suggested that the concept of usability should apply only to those
changes that affect access by persons with disabilities.  The
Department remains convinced that the Act requires the concept of
"usability" to be read broadly to include any change that affects
the usability of the facility, not simply changes that relate
directly to access by individuals with disabilities.

      The Department received a significant number of comments on
the examples provided in paragraphs (b)(1) and (b)(2) of the
proposed rule.  Some commenters urged the Department to limit the
application of this provision to major structural modifications,
while others asserted that it should be expanded to include
cosmetic changes such as painting and wallpapering.  The Department
believes that neither approach is consistent with the legislative
history, which requires this Department's regulation to be
consistent with the accessibility guidelines (ADAAG) developed by
the Architectural and Transportation Barriers Compliance Board
(ATBCB).  Although the legislative history contemplates that, in
some instances, the ADA accessibility standards will exceed the
current MGRAD requirements, it also clearly indicates the view of
the drafters that "minor changes such as painting or papering walls
. . . do not affect usability" (Education and Labor report at 111,
Judiciary report at 64), and, therefore, are not alterations.  The
proposed rule was based on the existing MGRAD definition of
"alteration."  The language of the final rule has been revised to
be consistent with ADAAG, incorporated as Appendix A to this part.

     Some commenters sought clarification of the intended scope of
this section.  The proposed rule contained illustrations of changes
that affect usability and those that do not.  The intent of the
illustrations was to explain the scope of the alterations
requirement; the effect was to obscure it.  As a result of the
illustrations, some commenters concluded that any alteration to a
facility, even a minor alteration such as relocating an electrical
outlet, would trigger an extensive obligation to provide access
throughout an entire facility.  That result was never contemplated.

     Therefore, in this final rule paragraph (b)(1) has been
revised to include the major provisions of paragraphs (b)(1) and
(b)(2) of the proposed rule.  The examples in the proposed rule
have been deleted.  Paragraph (b)(1) now provides that alterations
include, but are not limited to, remodeling, renovation,
rehabilitation, reconstruction, historic restoration, 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 building or facility.

     Paragraph (b)(2) of this final rule was added to clarify the
scope of the alterations requirement.  Paragraph (b)(2) provides
that 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 (ADAAG).  As provided in
{36.403, if an altered space or area is an area of the facility
that contains a primary function, then the requirements of that
section apply.

     Therefore, when an entity undertakes a minor alteration to a
place of public accommodation or commercial facility, such as
moving an electrical outlet, the new outlet must be installed in
compliance with ADAAG.  (Alteration of the elements listed in
{36.403(c)(2) cannot trigger a path of travel obligation.)  If the
alteration is to an area, such as an employee lounge or locker
room, that is not an area of the facility that contains a primary
function, that area must comply with ADAAG.  It is only when an
alteration affects access to or usability of an area containing a
primary function, as opposed to other areas or the elements listed
in {36.403(c)(2), that the path of travel to the altered area must
be made accessible. 

     The Department received relatively few comments on paragraph
(c), which explains the statutory phrase "to the maximum extent
feasible."  Some commenters suggested that the regulation should
specify that cost is a factor in determining whether it is feasible
to make an altered area accessible.  The legislative history of the
ADA indicates that the concept of feasibility only reaches the
question of whether it is possible to make the alteration
accessible in compliance with this part.  Costs are to be
considered only when an alteration to an area containing a primary
function triggers an additional requirement to make the path of
travel to the altered area accessible.  

     Section 36.402(c) is, therefore, essentially unchanged from
the proposed rule.  At the recommendation of a commenter, the
Department has inserted the word "virtually" to modify "impossible"
to conform to the language of the legislative history.  It explains
that 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 the occasional cases in which full compliance is
impossible, alterations shall provide the maximum physical
accessibility feasible.  Any features of the facility that are
being altered shall be made accessible unless it is technically
infeasible to do so.  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 or who have impaired
vision or hearing, or those who have other types of impairments).

Section 36.403  Alterations:  Path of travel.

     Section 36.403 implements the statutory requirement that any
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.  Paragraph (a) restates this statutory requirement.

     Paragraph (b) defines a "primary function" as a major activity
for which the facility is intended.  This paragraph is unchanged
from the proposed rule.  Areas that contain a primary function
include, but are not limited to, the customer services lobby of a
bank, the dining area of a cafeteria, the meeting rooms in a
conference center, as well as offices and all other work areas in
which the activities of the public accommodation or other private
entities using the facility are carried out.  The concept of "areas
containing a primary function" is analogous to the concept of
"functional spaces" in {3.5 of the existing Uniform Federal
Accessibility Standards, which defines "functional spaces" as
"[t]he rooms and spaces in a building or facility that house the
major activities for which the building or facility is intended."

     Paragraph (b) provides that areas such as mechanical rooms,
boiler rooms, supply storage rooms, employee lounges and locker
rooms, janitorial closets, entrances, corridors, and restrooms are
not areas containing a primary function.  There may be exceptions
to this general rule.  For example, the availability of public
restrooms at a place of public accommodation at a roadside rest
stop may be a major factor affecting customers' decisions to
patronize the public accommodation.  In that case, a restroom would
be considered to be an "area containing a primary function" of the
facility.

     Most of the commenters who addressed this issue supported the
approach taken by the Department; but a few commenters suggested
that areas not open to the general public or those used exclusively
by employees should be excluded from the definition of primary
function.  The preamble to the proposed rule noted that the
Department considered an alternative approach to the definition of
"primary function," under which a primary function of a commercial
facility would be defined as a major activity for which the
facility was intended, while a primary function of a place of
public accommodation would be defined as an activity which involves
providing significant goods, services, facilities, privileges,
advantages, or accommodations.  However, the Department concluded
that, although portions of the legislative history of the ADA
support this alternative, the better view is that the language now
contained in {36.403(b) most accurately reflects congressional
intent.  No commenter made a persuasive argument that the
Department's interpretation of the legislative history is
incorrect.

     When the ADA was introduced, the requirement to make
alterations accessible was included in section 302 of the Act,
which identifies the practices that constitute discrimination by a
public accommodation.  Because section 302 applies only to the
operation of a place of public accommodation, the alterations
requirement was intended only to provide access to clients and
customers of a public accommodation.  It was anticipated that
access would be provided to employees with disabilities under the
"reasonable accommodation" requirements of title I.  However,
during its consideration of the ADA, the House Judiciary Committee
amended the bill to move the alterations provision from section 302
to section 303, which applies to commercial facilities as well as
public accommodations.  The Committee report accompanying the bill
explains that:

     New construction and alterations of both public
     accommodations and commercial facilities must be made
     readily accessible to and usable by individuals with
     disabilities . . . .  Essentially, [this requirement] is
     designed to ensure that patrons and employees of public
     accommodations and commercial facilities are able to get
     to, enter and use the facility. . . .  The rationale for
     making new construction accessible applies with equal
     force to alterations.  

Judiciary report at 62-63 (emphasis added).

     The ADA, as enacted, contains the language of section 303 as
it was reported out of the Judiciary Committee.  Therefore, the
Department has concluded that the concept of "primary function"
should be applied in the same manner to places of public
accommodation and to commercial facilities, thereby including
employee work areas in places of public accommodation within the
scope of this section.  

     Paragraph (c) provides examples of alterations that affect the
usability of or access to an area containing a primary function. 
The examples include:  remodeling a merchandise display area or
employee work areas in a department store; installing a new floor
surface to replace an inaccessible surface in the customer service
area or employee work areas of a bank; redesigning the assembly
line area of a factory; and installing a computer center in an
accounting firm.  This list is illustrative, not exhaustive.  Any
change that affects the usability of or access to an area
containing a primary function triggers the statutory obligation to
make the path of travel to the altered area accessible.  

      When the proposed rule was drafted, the Department believed
that the rule made it clear that the ADA would require alterations
to the path of travel only when such alterations are not
disproportionate to the alteration to the primary function area. 
However, the comments that the Department received indicated that
many commenters believe that even minor alterations to individual
elements would require additional alterations to the path of
travel.  To address the concern of these commenters, a new
paragraph (c)(2) has been added to the final rule to provide that
alterations to such elements as windows, hardware, controls (e.g.
light switches or thermostats), electrical outlets, or signage will
not be deemed to be alterations that affect the usability of or
access to an area containing a primary function.   Of course, each
element that is altered must comply with ADAAG (Appendix A).  The
cost of alterations to individual elements would be included in the
overall cost of an alteration for purposes of determining
disproportionality and would be counted when determining the
aggregate cost of a series of small alterations in accordance with
{36.403(h) if the area is altered in a manner that affects access
to or usability of an area containing a primary function.

     Paragraph (d) concerns the respective obligations of landlords
and tenants in the cases of alterations that trigger the path of
travel requirement under {36.403.  This paragraph was contained in
the landlord/tenant section of the proposed rule, {36.201(b).  If
a tenant is making alterations upon its premises pursuant to terms
of a lease that grant it the authority to do so (even if they
constitute alterations that trigger the path of travel
requirement), and the landlord is not making alterations to other
parts of the facility, then the alterations by the tenant on its
own premises do not trigger a path of travel obligation upon the
landlord in areas of the facility under the landlord's authority
that are not otherwise being altered.  The legislative history
makes clear that the path of travel requirement applies only to the
entity that is already making the alteration, and thus the
Department has not changed the final rule despite numerous comments
suggesting that the tenant be required to provide a path of travel.

     Paragraph (e) defines a "path of travel" as a continuous,
unobstructed way of pedestrian passage by means of which an 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.  This concept of an accessible path of
travel is analogous to the concepts of "accessible route" and
"circulation path" contained in section 3.5 of the current UFAS. 
Some commenters suggested that this paragraph should address
emergency egress.  The Department disagrees.  "Path of travel" as
it is used in this section is a term of art under the ADA that
relates only to the obligation of the public accommodation or
commercial facility to provide additional accessible elements when
an area containing a primary function is altered.  The Department
recognizes that emergency egress is an important issue, but
believes that it is appropriately addressed in ADAAG (Appendix A),
not in this paragraph.  Furthermore, ADAAG does not require changes
to emergency egress areas in alterations.

     Paragraph (e)(2) is drawn from section 3.5 of UFAS.  It
provides that 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 such elements.  Paragraph (e)(3) provides that,
for the purposes of this part, the term "path of travel" also
includes the restrooms, telephones, and drinking fountains serving
an altered area.

     Although the Act establishes an expectation that an accessible
path of travel should generally be included when alterations are
made to an area containing a primary function, Congress recognized
that, in some circumstances, providing an accessible path of travel
to an altered area may be sufficiently burdensome in comparison to
the alteration being undertaken to the area containing a primary
function as to render this requirement unreasonable.  Therefore,
Congress provided, in section 303(a)(2) of the Act, that
alterations to the path of travel that are disproportionate in cost
and scope to the overall alteration are not required.

     The Act requires the Attorney General to determine at what
point the cost of providing an accessible path of travel becomes
disproportionate.  The proposed rule provided three options for
making this determination.

     Two committees of Congress specifically addressed this issue: 
the House Committee on Education and Labor and the House Committee
on the Judiciary.  The reports issued by each committee suggested
that accessibility alterations to a path of travel might be
"disproportionate" if they exceed 30% of the alteration costs
(Education and Labor report at 113; Judiciary report at 64). 
Because the Department believed that smaller percentage rates might
be appropriate, the proposed rule sought comments on three options:
10%, 20%, or 30%.

     The Department received a significant number of comments on
this section.  Commenters representing individuals with
disabilities generally supported the use of 30% (or more);
commenters representing covered entities supported a figure of 10%
(or less).  The Department believes that alterations made to
provide an accessible path of travel to the altered area should be
deemed disproportionate to the overall alteration when the cost
exceeds 20% of the cost of the alteration to the primary function
area.  This approach appropriately reflects the intent of Congress
to provide access for individuals with disabilities without causing
economic hardship for the covered public accommodations and
commercial facilities.

     The Department has determined that the basis for this cost
calculation shall be the cost of the alterations to the area
containing the primary function.  This approach will enable the
public accommodation or other private entity that is making the
alteration to calculate its obligation as a percentage of a clearly
ascertainable base cost, rather than as a percentage of the "total"
cost, an amount that will change as accessibility alterations to
the path of travel are made.

     Paragraph (f)(2) (paragraph (e)(2) in the proposed rule) is
unchanged.  It provides examples of costs that may be counted as
expenditures required to provide an accessible path of travel. They
include:  

  `  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;

  `  Costs associated with making restrooms accessible, such as
     installing grab bars, enlarging toilet stalls, insulating
     pipes, or installing accessible faucet controls;

  `  Costs associated with providing accessible telephones, such as
     relocating telephones to an accessible height, installing
     amplification devices, or installing telecommunications
     devices for deaf persons (TDD's);

  `  Costs associated with relocating an inaccessible drinking
     fountain.

     Paragraph (f)(1) of the proposed rule provided that when the
cost of alterations necessary to make the path of travel serving an
altered area fully accessible is disproportionate to the cost of
the overall alteration, the path of travel shall be made accessible
to the maximum extent feasible.  In response to the suggestion of
a commenter, the Department has made an editorial change in the
final rule (paragraph (g)(1)) to clarify that if the cost of
providing a fully accessible path of travel is disproportionate,
the path of travel shall be made accessible "to the extent that it
can be made accessible without incurring disproportionate costs." 

     Paragraph (g)(2) (paragraph (f)(2) in the NPRM) establishes
that priority should be given to those elements that will provide
the greatest access, in the following order:  an accessible
entrance; an accessible route to the altered area; at least one
accessible restroom for each sex or a single unisex restroom;
accessible telephones; accessible drinking fountains; and, whenever
possible, additional accessible elements such as parking, storage,
and alarms.  This paragraph is unchanged from the proposed rule.

     Paragraph (h) (paragraph (g) in the proposed rule) provides
that 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.  If an area containing a
primary function has been altered without providing an accessible
path of travel to serve 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 primary function areas on that path of
travel during the preceding three year period shall be considered
in determining whether the cost of making the path of travel
serving that area accessible is disproportionate.  Only alterations
undertaken after January 26, 1992, shall be considered in
determining if the cost of providing accessible features is
disproportionate to the overall cost of the alterations.

Section 36.404  Alterations:  Elevator exemption.

     Section 36.404 implements the elevator exemption in section
303(b) of the Act as it applies to altered facilities.  The
provisions of section 303(b) are discussed in the preamble to
{36.401(d) above.  The statute applies the same exemption to both
new construction and alterations.  The principal difference between
the requirements of {36.401(d) and {36.404 is that, in altering an
existing facility that is not eligible for the statutory exemption,
the public accommodation or other private entity responsible for
the alteration is not required to install an elevator if the
installation of an elevator would be disproportionate in cost and
scope to the cost of the overall alteration as provided in
{36.403(f)(1).  In addition, the standards referenced in {36.406
(ADAAG) provide that installation of an elevator in an altered
facility is not required if it is "technically infeasible."

     This section has been revised to define the terms
"professional office of a health care provider" and "shopping
center or shopping mall" for the purposes of this section.  The
definition of "professional office of a health care provider" is
identical to the definition included in {36.401(d).

     It has been brought to the attention of the Department that
there is some misunderstanding about the scope of the elevator
exemption as it applies to the professional office of a health care
provider.  A public accommodation, such as the professional office
of a health care provider, is required to remove architectural
barriers to its facility to the extent that such barrier removal is
readily achievable (see {36.304), but it is not otherwise required
by this part to undertake new construction or alterations.  This
part does not require that an existing two story building that
houses the professional office of a health care provider be altered
for the purpose of providing elevator access.  If, however,
alterations to the area housing the office of the health care
provider are undertaken for other purposes, the installation of an
elevator might be required, but only if the cost of the elevator is
not disproportionate to the cost of the overall alteration. 
Neither the Act nor this part prohibits a health care provider from
locating his or her professional office in an existing facility
that does not have an elevator. 

     Because of the unique challenges presented in altering
existing facilities, the Department has adopted a definition of
"shopping center or shopping mall" for the purposes of this section
that is slightly different from the definition adopted under
{36.401(d).  For the purposes of this section, a "shopping center
or shopping mall" is (1) a building housing five or more sales or
rental establishments, or (2) a series of buildings on a common
site, connected by a common pedestrian access route above or below
the ground floor, either under common ownership or common control
or developed either as one project or as a series of related
projects, housing five or more sales or rental establishments.  As
is the case with new construction, the term "shopping center or
shopping mall" only includes floor levels housing at least one
sales or rental establishment, or any floor level that was designed
or intended for use by at least one sales or rental establishment.

     The Department believes that it is appropriate to use a
different definition of "shopping center or shopping mall" for this
section than for {36.401, in order to make it clear that a series
of existing buildings on a common site that is altered for the use
of sales or rental establishments does not become a "shopping
center or shopping mall" required to install an elevator, unless
there is a common means of pedestrian access above or below the
ground floor.  Without this exemption, separate, but adjacent,
buildings that were initially designed and constructed
independently of each other could be required to be retrofitted
with elevators, if they were later renovated for a purpose not
contemplated at the time of construction.

     Like {36.401(d), {36.404 provides that the exemptions in this
paragraph do not obviate or limit in any way the obligation to
comply with the other accessibility requirements established in
this subpart.  For example, alterations to floors above or below
the ground floor must be accessible regardless of whether the
altered facility has an elevator.  If a facility that is not
required to install an elevator nonetheless has an elevator, that
elevator shall meet, to the maximum extent feasible, the
accessibility requirements of this section.

Section 36.405  Alterations:  Historic preservation. 

     Section 36.405 gives effect to the intent of Congress,
expressed in section 504(c) of the Act, that this part recognize
the national interest in preserving significant historic
structures.  Commenters criticized the Department's use of
descriptive terms in the proposed rule that are different from
those used in the ADA to describe eligible historic properties. In
addition, some commenters criticized the Department's decision to
use the concept of "substantially impairing" the historic features
of a property, which is a concept employed in regulations
implementing section 504 of the Rehabilitation Act of 1973.  Those
commenters recommended that the Department adopt the criteria of
"adverse effect" published by the Advisory Council on Historic
Preservation under the National Historic Preservation Act (36 CFR
800.9) as the standard for determining whether an historic property
may be altered.

     The Department agrees with these comments to the extent that
they suggest that the language of the rule should conform to the
language employed by Congress in the ADA.  Therefore, the language
of this section has been revised to make it clear that this
provision applies 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.) and to
buildings or facilities that are designated as historic under State
or local law.  The Department believes, however, that the criteria
of adverse effect employed under the National Historic Preservation
Act are inappropriate for this rule because section 504(c) of the
ADA specifies that special alterations provisions shall apply only
when an alteration would "threaten or destroy the historic
significance of qualified historic buildings and facilities."

     The Department intends that the exception created by this
section be applied only in those very rare situations in which it
is not possible to provide access to an historic property using the
special access provisions in ADAAG.  Therefore, paragraph (a) of
{36.405 has been revised to provide  that alterations to historic
properties shall comply, to the maximum extent feasible, with
section 4.1.7 of ADAAG.  Paragraph (b) of this section has been
revised to provide that if it has been determined, under the
procedures established in ADAAG, 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 property, alternative methods of
access shall be provided pursuant to the requirements of Subpart C.

Section 36.406  Standards for new construction and alterations.

     Section 36.406 implements the requirements of sections 306(b)
and 306(c) of the Act, which require the Attorney General to
promulgate standards for accessible design for buildings and
facilities subject to the Act and this part that are consistent
with the supplemental minimum guidelines and requirements for
accessible design published by the Architectural and Transportation
Barriers Compliance Board (ATBCB or Board) pursuant to section 504
of the Act.  This section of the rule provides that new
construction and alterations subject to this part shall comply with
the standards for accessible design published as Appendix A to this
part.  

     Appendix A contains the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (ADAAG),
which is being published by the ATBCB as a final rule elsewhere in
this issue of the Federal Register.  As proposed in this
Department's proposed rule, {36.406(a) adopts ADAAG as the
accessibility standard applicable under this rule.  

     Paragraph (b) was not included in the proposed rule.  It
provides, in chart form, guidance for using ADAAG together with
subparts A through D of this part when determining requirements for
a particular facility.  This chart is intended solely as guidance
for the user; it has no effect for purposes of compliance or
enforcement.  It does not necessarily provide complete or mandatory
information.

     Proposed {36.406(b) is not included in the final rule.  That
provision, which would have taken effect only if the final rule had
followed the proposed Option Two for {36.401(a), is unnecessary
because the Department has chosen Option One, as explained in the
preamble for that section.  

     Section 504(a) of the ADA requires the ATBCB to issue minimum
guidelines to supplement the existing Minimum Guidelines and
Requirements for Accessible Design (MGRAD) (36 CFR part 1190) for
purposes of title III.  According to section 504(b) of the Act, the
guidelines are to establish additional requirements, consistent
with the Act, "to ensure that buildings and facilities are
accessible, in terms of architecture and design, ... and
communication, to individuals with disabilities."  Section 306(c)
of the Act requires that the accessibility standards included in
the Department's regulations be consistent with the minimum
guidelines, in this case ADAAG.

     As explained in the ATBCB's preamble to ADAAG, the substance
and form of the guidelines are drawn from several sources.  They
use as their model the 1984 Uniform Federal Accessibility Standards
(UFAS) (41 CFR part 101, subpart 101-19.6, Appendix), which are the
standards implementing the Architectural Barriers Act.  UFAS is
based on the Board's 1982 MGRAD.  ADAAG follows the numbering
system and format of the private sector American National Standard
Institute's ANSI A117.1 standards.  (American National
Specifications for Making Buildings and Facilities Accessible to
and Usable by Physically Handicapped People (ANSI A117-1980) and
American National Standard for Buildings and Facilities --
Providing Accessibility and Usability for Physically Handicapped
People (ANSI A117.1-1986).)  ADAAG supplements MGRAD.  In
developing ADAAG, the Board made every effort to be consistent with
MGRAD and the current and proposed ANSI Standards, to the extent
consistent with the ADA.

     ADAAG consists 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.  The scoping
provisions are listed separately for new construction of sites and
exterior facilities; new construction of buildings; additions;
alterations; and alterations to historic properties.  The technical
specifications generally reprint the text and illustrations of the
ANSI A117.1 standard, except where differences are noted by
italics.  Sections 5 through 9 of the guidelines are special
application sections and contain additional requirements for
restaurants and cafeterias, medical care facilities, business and
mercantile facilities, libraries, and transient lodging.  The
appendix to the guidelines contains additional information to aid
in understanding the technical specifications.  The section numbers
in the appendix correspond to the sections of the guidelines to
which they relate.  An asterisk after a section number indicates
that additional information appears in the appendix.

     ADAAG's provisions are further explained under Summary of
ADAAG, below.

General comments

     One commenter urged the Department to move all or portions of
subpart D, New Construction and Alterations, to the Appendix
(ADAAG) or to duplicate portions of subpart D in the Appendix.  The
commenter correctly pointed out that subpart D is inherently linked
to ADDAG, and that a self-contained set of rules would be helpful
to users.  The Department has attempted to simplify use of the two
documents by deleting some paragraphs from subpart D (e.g., those
relating to work areas), because they are included in ADAAG. 
However, the Department has retained in subpart D those sections
that are taken directly from the statute or that give meaning to
specific statutory concepts (e.g., structural impracticability,
path of travel).   While some of the subpart D provisions are
duplicated in ADAAG, others are not.  For example, issues relating
to path of travel and disproportionality in alterations are not
addressed in detail in ADAAG.  (The structure and contents of the
two documents are addressed below under Summary of ADAAG.)  While
the Department agrees that it would be useful to have one self-
contained document, the different focuses of this rule and ADAAG do
not permit this result at this time.  However, the chart included
in {36.406(b) should assist users in applying the provisions of
subparts A through D, and ADAAG together.

     Numerous business groups have urged the Department not to
adopt the proposed ADAAG as the accessibility standards, because
the requirements established are too high, reflect the "state of
the art," and are inflexible, rigid, and impractical.  Many of
these objections have been lodged on the basis that ADAAG exceeds
the statutory mandate to establish "minimum" guidelines.  In the
view of the Department, these commenters have misconstrued the
meaning of the term "minimum guidelines."  The statute clearly
contemplates that the guidelines establish a level of access -- a
minimum -- that the standards must meet or exceed.  The guidelines
are not to be "minimal" in the sense that they would provide for a
low level of access.  To the contrary, Congress emphasized that the
ADA requires a "high degree of convenient access."  Education and
Labor report at 117-18.  The legislative history explains that the
guidelines may not "reduce, weaken, narrow or set less
accessibility standards than those included in existing MGRAD" and
should provide greater guidance in communication accessibility for
individuals with hearing and vision impairments.  Id. at 139.  Nor
did Congress contemplate a set of guidelines less detailed than
ADAAG; the statute requires that the ADA guidelines supplement the
existing MGRAD.  When it established the statutory scheme, Congress
was aware of the content and purpose of the 1982 MGRAD; as ADAAG
does with respect to ADA, MGRAD establishes a minimum level of
access that the Architectural Barriers Act standards (i.e., UFAS)
must meet or exceed, and includes a high level of detail.

     Many of the same commenters urged the Department to
incorporate as its accessibility standards the ANSI standard's
technical provisions and to adopt the proposed scoping provisions
under development by the Council of American Building Officials'
Board for the Coordination of Model Codes (BCMC).  They contended
that the ANSI standard is familiar to and accepted by
professionals, and that both documents are developed through
consensus.  They suggested that ADAAG will not stay current,
because it does not follow an established cyclical review process,
and that it is not likely to be adopted by nonfederal jurisdictions
in State and local codes.  They urged the Department and the Board
to coordinate the ADAAG provisions and any substantive changes to
them with the ANSI A117 committee in order to maintain a consistent
and uniform set of accessibility standards that can be efficiently
and effectively implemented at the State and local level through
the existing building regulatory processes.

     The Department shares the commenters' goal of coordination
between the private sector and Federal standards, to the extent
that coordination can lead to substantive requirements consistent
with the ADA.  A single accessibility standard, or consistent
accessibility standards, that can be used for ADA purposes and that
can be incorporated or referenced by State and local governments,
would help to ensure that the ADA requirements are routinely
implemented at the design stage.  The Department plans to work
toward this goal.

     The Department, however, must comply with the requirements of
the ADA, the Federal Advisory Committee Act (5 USC App. 1 et seq.)
and the Administrative Procedure Act (5 USC 551 et seq.).  Neither
the Department nor the Board can adopt private requirements
wholesale.  Furthermore, neither the 1991 ANSI A117 Standard
revision nor the BCMC process is complete.  Although the ANSI and
BCMC provisions are not final, the Board has carefully considered
both the draft BCMC scoping provisions and draft ANSI technical
standards and included their language in ADAAG wherever consistent
with the ADA.

     Some commenters requested that, if the Department did not
adopt ANSI by reference, the Department declare compliance with
ANSI/BCMC to constitute equivalency with the ADA standards.  The
Department has not adopted this recommendation but has instead
worked as a member of the ATBCB to ensure that its accessibility
standards are practical and usable.  In addition, as explained
under Subpart F, Certification of State Laws or Local Building
Codes, the proper forum for further evaluation of this suggested
approach would be in conjunction with the certification process.

     Some commenters urged the Department to allow an additional
comment period after the Board published its guidelines in final
form, for purposes of affording the public a further opportunity to
evaluate the appropriateness of including them as the Department's
accessibility standards.  Such an additional comment period is
unnecessary and would unduly delay the issuance of final
regulations.  The Department put the public on notice, through the
proposed rule, of its intention to adopt the proposed ADAAG, with
any changes made by the Board, as the accessibility standards.  As
a member of the Board and of its ADA Task Force, the Department
participated actively in the public hearings held on the proposed
guidelines and in preparation of both the proposed and final
versions of ADAAG.  Many individuals and groups commented directly
to the Department's docket, or at its public hearings, about ADAAG. 
The comments received on ADAAG, whether by the Board or by this
Department, were thoroughly analyzed and considered by the
Department in the context of whether the proposed ADAAG was
consistent with the ADA and suitable for adoption as both
guidelines and standards.  The Department is convinced that ADAAG
as adopted in its final form is appropriate for these purposes. 
The final guidelines, adopted here as standards, will ensure the
high level of access contemplated by Congress, consistent with the
ADA's balance between the interests of people with disabilities and
the business community. 

     A few commenters, citing the Senate report (at 70) and the
Education and Labor report (at 119), asked the Department to
include in the regulations a provision stating that departures from
particular technical and scoping requirements of the accessibility
standards will be permitted so long as the alternative methods used
will provide substantially equivalent or greater access to and
utilization of the facility.  Such a provision is found in ADAAG
2.2 and by virtue of that fact is included in these regulations.

Comments on specific provisions of proposed ADAAG

     During the course of accepting comments on its proposed rule,
the Department received numerous comments on ADAAG.  Those areas
that elicited the heaviest response included assistive listening
systems, automated teller machines, work areas, parking, areas of
refuge, telephones (scoping for TDD's and volume controls) and
visual alarms.  Strenuous objections were raised by some business
commenters to the proposed provisions of the guidelines concerning
check-out aisles, counters, and scoping for hotels and nursing
facilities.  All these comments were considered in the same manner
as other comments on the Department's proposed rule and, in the
Department's view, have been addressed adequately in the final
ADAAG.

     Largely in response to comments, the Board made numerous
changes from its proposal, including the following:

`    Generally, at least 50% of public entrances to new buildings
     must be accessible, rather than all entrances, as would often
     have resulted from the proposed approach.

`    Not all check-out aisles are required to be accessible.

`    The final guidelines provide greater flexibility in providing
     access to sales counters, and no longer require a portion of
     every counter to be accessible.

`    Scoping for TDD's or text telephones was increased.  One TDD
     or text telephone, for speech and hearing impaired persons,
     must be provided at locations with 4, rather than 6, pay
     phones, and in hospitals and shopping malls.  Use of portable
     (less expensive) TDD's is allowed. 

`    Dispersal of wheelchair seating areas in theaters will be
     required only where there are more than 300 seats, rather than
     in all cases.  Seats with removable armrests (i.e., seats into
     which persons with mobility impairments can transfer) will
     also be required. 

`    Areas of refuge (areas with direct access to a stairway, and
     where people who cannot use stairs may await assistance during
     a emergency evacuation) will be required, as proposed, but the
     final provisions are based on the Uniform Building Code.  Such
     areas are not required in alterations.

`    Rather than requiring 5% of new hotel rooms to be accessible
     to people with mobility impairments, between 2 and 4%
     accessibility (depending on total number of rooms) is
     required.  In addition, 1% of the rooms must have roll-in
     showers.

`    The proposed rule reserved the provisions on alterations to
     homeless shelters.  The final guidelines apply alterations
     requirements to homeless shelters, but the requirements are
     less stringent than those applied to other types of
     facilities.

`    Parking spaces that can be used by people in vans (with lifts)
     will be required.

`    As mandated by the ADA, the Board has established a procedure
     to be followed with respect to alterations to historic
     facilities. 

Summary of ADAAG

     This section of the preamble summarizes the structure of
ADAAG, and highlights the more important portions.

`Sections 1 through 3

     Sections 1 through 3 contain general requirements, including
definitions.

`Section 4.1.1, Application

     Section 4 contains scoping requirements.  Section 4.1.1,
Application, provides that all areas of newly designed or newly
constructed buildings and facilities and altered portions of
existing buildings and facilities required to be accessible by
{4.1.6 must comply with the guidelines unless otherwise provided in
{4.1.1 or a special application section.  It addresses areas used
only by employees as work areas, temporary structures, and general
exceptions.

     Section 4.1.1(3) preserves the basic principle of the proposed
rule: areas that may be used by employees with disabilities shall
be designed and constructed so that an individual with a disability
can approach, enter, and exit the area.  The language has been
clarified to provide that it applies to any area used only as a
work area (not just to areas "that may be used by employees with
disabilities"), and that the guidelines do not require that any
area used as an individual work station be designed with
maneuvering space or equipped to be accessible.  The appendix to
ADAAG explains that work areas must meet the guidelines'
requirements for doors and accessible routes, and recommends, but
does not require, that 5% of individual work stations be designed
to permit a person using a wheelchair to maneuver within the space.

     Further discussion of work areas is found in the preamble
concerning proposed {36.401(b).

     Section 4.1.1(5)(a) includes an exception for structural
impracticability that corresponds to the one found in {36.401(c)
and discussed in that portion of the preamble.

`Section 4.1.2, Accessible Sites and Exterior Facilities: New
Construction

     This section addresses exterior features, elements, or spaces
such as parking, portable toilets, and exterior signage, in new
construction.  Interior elements and spaces are covered by {4.1.3.

     The final rule retains the UFAS scoping for parking but also
requires that at least one of every eight accessible parking spaces
be designed with adequate adjacent space to deploy a lift used with
a van.  These spaces must have a sign indicating that they are van-
accessible, but they are not to be reserved exclusively for van
users.

`Section 4.1.3, Accessible Buildings: New Construction

     This section establishes scoping requirements for new
construction of buildings and facilities.

     Sections 4.1.3(1) through (4) cover accessible routes,
protruding objects, ground and floor surfaces, and stairs.

     Section 4.1.3(5) generally requires elevators to serve each
level in a newly constructed building, with four exceptions
included in the subsection.  Exception 1 is the "elevator
exception" established in {36.401(d), which must be read with this
section.  Exception 4 allows the use of platform lifts under
certain conditions.

     Section 4.1.3(6), Windows, is reserved.  Section 4.1.3(7)
applies to doors.

     Under {4.1.3(8), at least 50% of all public entrances must be
accessible.  In addition, if a building is designed to provide
access to enclosed parking, pedestrian tunnels, or elevated
walkways, at least one entrance that serves each such function must
be accessible.  Each tenancy in a building must be served by an
accessible entrance.  Where local regulations (e.g., fire codes)
require that a minimum number of exits be provided, an equivalent
number of accessible entrances must be provided.  (The latter
provision does not require a greater number of entrances than
otherwise planned.)

     ADAAG {4.1.3(9), with accompanying technical requirements in
{4.3, requires an area of rescue assistance (i.e., an area with
direct access to an exit stairway and where people who are unable
to use stairs may await assistance during an emergency evacuation)
to be established on each floor of a multi-story building.  This
was one of the most controversial provisions in the guidelines. 
The final ADAAG is based on current Uniform Building Code
requirements and retains the requirement that areas of refuge
(renamed "areas of rescue assistance") be provided, but specifies
that this requirement does not apply to buildings that have a
supervised automatic sprinkler system.  Areas of refuge are not
required in alterations.  

     The next seven subsections deal with drinking fountains
({4.1.3(10)); toilet facilities ({4.1.3(11)); storage, shelving,
and display units ({4.1.3(12)), controls and operating mechanisms
({4.1.3(13)), emergency warning systems ({4.1.3(14), detectable
warnings ({4.1.3(15)), and building signage ({4.1.3(16)). 
Paragraph 11 requires that toilet facilities comply with {4.22,
which requires one accessible toilet stall (60" x 60") in each
newly constructed restroom.  In response to public comments, the
final rule requires that a second accessible stall (36" x 60") be
provided in restrooms that have six or more stalls.

     ADAAG {4.1.3(17) establishes requirements for accessibility of
pay phones to persons with mobility impairments, hearing
impairments (requiring some phones with volume controls), and those
who cannot use voice telephones.   It requires one interior "text
telephone" to be provided at any facility that has a total of four
or more public pay phones.  (The term "text telephone" has been
adopted to reflect current terminology and changes in technology.) 
In addition, text telephones will be required in specific
locations, such as covered shopping malls, hospitals (in emergency
rooms, waiting rooms, and recovery areas), and convention
centers.  

     Paragraph 18 of {4.1.3 generally requires that at least five
percent of fixed or built-in seating or tables be accessible.

     Paragraph 19, covering assembly areas, specifies the number of
wheelchair seating spaces and types and numbers of assistive
listening systems required.  It requires dispersal of wheelchair
seating locations in facilities where there are more than 300
seats.  The guidelines also require that at least one percent of
all fixed seats be aisle seats without armrests (or with moveable
armrests) on the aisle side to increase accessibility for persons
with mobility impairments who prefer to transfer from their
wheelchairs to fixed seating.  In addition, the final ADAAG
requires that fixed seating for a companion be located adjacent to
each wheelchair location.

     Paragraph 20 requires that where automated teller machines are
provided, at least one must comply with {4.34, which, among other
things, requires accessible controls, and instructions and other
information that are accessible to persons with sight impairments.

     Under paragraph 21, where dressing rooms are provided, five
per cent or at least one must comply with {4.35.

`Section 4.1.5, Additions

     Each addition to an existing building or facility is regarded
as an alteration subject to {{36.402 through 36.406 of subpart D,
including the date established in {36.402(a).  But additions also
have attributes of new construction, and
to the extent that a space or element in the addition is newly
constructed, each new space or element must comply with the
applicable scoping provisions of {{4.1.1 to 4.1.3 for new
construction, the applicable technical specifications of {{4.2
through 4.34, and any applicable special provisions in {{5 through
10.  For instance, if a restroom is provided in the addition, it
must comply with the requirements for new construction. 
Construction of an addition does not, however, create an obligation
to retrofit the entire existing building or facility to meet
requirements for new construction.  Rather, the addition is to be
regarded as an alteration and to the extent that it affects or
could affect the usability of or access to an area containing a
primary function, the requirements in {4.1.6(2) are triggered with
respect to providing an accessible path of travel to the altered
area and making the restrooms, telephones, and drinking fountains
serving the altered area accessible.  For example, if a museum adds
a new wing that does not have a separate entrance as part of the
addition, an accessible path of travel would have to be provided
through the existing building or facility unless it is
disproportionate to the overall cost and scope of the addition as
established in {36.403(f).

`Section 4.1.6, Alterations

     An alteration is a change to a building or facility that
affects or could affect the usability of or access to the building
or facility or any part thereof.  There are three general
principles for alterations.  First, if any existing element or
space is altered, the altered element or space must meet new
construction requirements ({4.1.6(1)(b)).  Second, if alterations
to the elements in a space when considered together amount to an
alteration of the space, the entire space must meet new
construction requirements ({4.1.6(1)(c)).  Third, if the alteration
affects or could affect the usability of or access to an area
containing a primary function, the path of travel to the altered
area and the restrooms, drinking fountains, and telephones serving
the altered area must be made accessible unless it is
disproportionate to the overall alterations in terms of cost and
scope as determined under criteria established by the Attorney
General ({4.1.6(2)).

     Section 4.1.6 should be read with {{36.402 through 36.405. 
Requirements concerning alterations to an area serving a primary
function are addressed with greater detail in the latter sections
than in {4.1.6(2).  Section 4.1.6(1)(j) deals with technical
infeasibility.  Section 4.1.6(3) contains special technical
provisions for alterations to existing buildings and facilities.

`Section 4.1.7, Historic Preservation

     This section contains scoping provisions and alternative
requirements for alterations to qualified historic buildings and
facilities.  It clarifies the procedures under the National
Historic Preservation Act and their application to alterations
covered by the ADA.  An individual seeking to alter a facility that
is subject to the ADA guidelines and to State or local historic
preservation statutes shall consult with the State Historic
Preservation Officer to determine if the planned alteration would
threaten or destroy the historic significance of the facility.

`Sections 4.2 through 4.35

     Sections 4.2 through 4.35 contain the technical 
specifications for elements and spaces required to be accessible by
the scoping provisions ({{4.1 through 4.1.7) and special
application sections ({{5 through 10).  The technical
specifications are the same as the 1980 version of ANSI A117.1
standard, except as noted in the text by italics.

`Sections 5 through 9

     These are special application sections and contain additional
requirements for restaurants and cafeterias, medical care
facilities, business and mercantile facilities, libraries, and
transient lodging.  For example, at least 5 percent, but not less
than one, of the fixed tables in a restaurant must be accessible.

     In {7, Business and Mercantile, paragraph 7.2 (Sales and
Service Counters, Teller Windows, Information Counters) has been
revised to provide greater flexibility in new construction than did
the proposed rule.  At least one of each type of sales or service
counter where a cash register is located shall be made accessible. 
Accessible counters shall be dispersed throughout the facility.  At
counters such as bank teller windows or ticketing counters,
alternative methods of compliance are permitted.  A public
accommodation may lower a portion of the counter, provide an
auxiliary counter, or provide equivalent facilitation through such
means as installing a folding shelf on the front of the counter at
an accessible height to provide a work surface for a person using
a wheelchair.

     Section 7.3., Check-out Aisles, provides that, in new
construction, a certain number of each design of check-out aisle,
as listed in a chart based on the total number of check-out aisles
of each design, shall be accessible.  The percentage of check-outs
required to be accessible generally ranges from 20% to 40%.  In a
newly constructed or altered facility with less than 5,000 square
feet of selling space, at least one of each type of check-out aisle
must be accessible.  In altered facilities with 5,000 or more
square feet of selling space, at least one of each design of check-
out aisle must be made accessible when altered, until the number of
accessible aisles of each design equals the number that would be
required for new construction.

`Section 9, Accessible Transient Lodging

     Section 9 addresses two types of transient lodging: hotels,
motels, inns, boarding houses, dormitories, resorts, and other
similar places ({{9.1 through 9.4); and homeless shelters, halfway
houses, transient group homes, and other social service
establishments ({9.5).  The interplay of the ADA and Fair Housing
Act with respect to such facilities is addressed in the preamble
discussion of the definition of "place of public accommodation" in
{36.104.

     The final rule establishes scoping requirements for
accessibility of newly constructed hotels.  Four percent of the
first hundred rooms, and roughly two percent of rooms in excess of
100, must meet certain requirements for accessibility to persons
with mobility or hearing impairments, and an additional identical
percentage must be accessible to persons with hearing impairments. 
An additional 1% of the available rooms must be equipped with roll-
in showers, raising the actual scoping for rooms accessible to
persons with mobility impairments to 5% of the first hundred rooms
and 3% thereafter.  The final ADAAG also provides that when a hotel
is being altered, one fully accessible room and one room equipped
with visual alarms, notification devices, and amplified telephones
shall be provided for each 25 rooms being altered until the number
of accessible rooms equals that required under the new construction
standard.  Accessible rooms must be dispersed in a manner that will
provide persons with disabilities with a choice of single or
multiple-bed accommodations.

     In new construction, homeless shelters and other social
service entities must comply with ADAAG; at least one type of
amenity in each common area must be accessible.  In a facility that
is not required to have an elevator, it is not necessary to provide
accessible amenities on the inaccessible floors if at least one of
each type of amenity is provided in accessible common areas.     
The percentage of accessible sleeping accommodations required is
the same as that required for other places of transient lodging. 
Requirements for facilities altered for use as a homeless shelter
parallel the current MGRAD accessibility requirements for leased
buildings.  A shelter located in an altered facility must have at
least one accessible entrance, accessible sleeping accommodations
in a number equivalent to that established for new construction, at
least one accessible toilet and bath, at least one accessible
common area, and an accessible route connecting all accessible
areas.  All accessible areas in a homeless shelter in an altered
facility may be located on one level.
Section 10, Transportation Facilities 

     Section 10 of ADAAG is reserved.  On March 20, 1991, the ATBCB
published a supplemental notice of proposed rulemaking (56 FR
11874) to establish special access requirements for transportation
facilities.  The Department anticipates that when the ATBCB issues
final guidelines for transportation facilities, this part will be
amended to include those provisions.   

Subpart E -- Enforcement.

     Because the Department of Justice does not have authority to
establish procedures for judicial review and enforcement, subpart
E generally restates the statutory procedures for enforcement.  

     Section 36.501 describes the procedures for private suits by
individuals and the judicial remedies available.  In addition to
the language in section 308(a)(1) of the Act, {36.501(a) of this
part includes the language from section 204(a) of the Civil Rights
Act of 1964 (42 U.S.C. 2000a-3(a)) which is incorporated by
reference in the ADA.  A commenter noted that the proposed rule did
not include the provision in section 204(a) allowing the court to
appoint an attorney for the complainant and authorize the
commencement of the civil action without the payment of fees,
costs, or security.  That provision has been included in the final
rule.

     Section 308(a)(1) of the ADA permits a private suit by an
individual who has reasonable grounds for believing that he or she
is "about to be" subjected to discrimination in violation of
section 303 of the Act (subpart D of this part), which requires
that new construction and alterations be readily accessible to and
usable by individuals with disabilities.  Authorizing suits to
prevent construction of facilities with architectural barriers will
avoid the necessity of costly retrofitting that might be required
if suits were not permitted until after the facilities were
completed.  To avoid unnecessary suits, this section requires that
the individual bringing the suit have "reasonable grounds" for
believing that a violation is about to occur, but does not require
the individual to engage in a futile gesture if he or she has
notice that a person or organization covered by title III of the
Act does not intend to comply with its provisions.

     Section 36.501(b) restates the provisions of section 308(a)(2)
of the Act, which states that injunctive relief for the failure to
remove architectural barriers in existing facilities or the failure
to make new construction and alterations accessible "shall include"
an order to alter these facilities to make them readily accessible
to and usable by persons with disabilities to the extent required
by title III.  The Report of the Energy and Commerce Committee
notes that "an order to make a facility readily accessible to and
usable by individuals with disabilities is mandatory" under this
standard.  H.R. Rep. No. 485, 101st Cong., 2d Sess., pt 4, at 64
(1990).  Also, injunctive relief shall include, where appropriate,
requiring the provision of an auxiliary aid or service,
modification of a policy, or provision of alternative methods, to
the extent required by title III of the Act and this part.

     Section 36.502 is based on section 308(b)(1)(A)(i) of the Act,
which provides that the Attorney General shall investigate alleged
violations of title III and undertake periodic reviews of
compliance of covered entities.  Although the Act does not
establish a comprehensive administrative enforcement mechanism for
investigation and resolution of all complaints received, the
legislative history notes that investigation of alleged violations
and periodic compliance reviews are essential to effective
enforcement of title III, and that the Attorney General is expected
to engage in active enforcement and to allocate sufficient
resources to carry out this responsibility.  Judiciary Report at
67.

     Many commenters argued for inclusion of more specific
provisions for administrative resolution of disputes arising under
the Act and this part in order to promote voluntary compliance and
avoid the need for litigation.  Administrative resolution is far
more efficient and economical than litigation, particularly in the
early stages of implementation of complex legislation when the
specific requirements of the statute are not widely understood. 
The Department has added a new paragraph (c) to this section
authorizing the Attorney General to initiate a compliance review
where he or she has reason to believe there may be a violation of
this rule.

     Section 36.503 describes the procedures for suits by the
Attorney General set out in section 308(b)(1)(B) of the Act.  If
the Department has reasonable cause to believe that any person or
group of persons is engaged in a pattern or practice of resistance
to the full enjoyment of any of the rights granted by title III or
that any person or group of persons has been denied any of the
rights granted by title III and such denial raises an issue of
general public importance, the Attorney General may commence a
civil action in any appropriate United States district court.  The
proposed rule provided for suit by the Attorney General "or his or
her designee."  The reference to a "designee" has been omitted in
the final rule because it is unnecessary.  The Attorney General has
delegated enforcement authority under the ADA to the Assistant
Attorney General for Civil Rights.  55 Fed. Reg. 40653 (October 4,
1990) (to be codified at 28 CFR {0.50(l).)

     Section 36.504 describes the relief that may be granted in a
suit by the Attorney General under section 308(b)(2) of the Act. 
In such an action, the court may grant any equitable relief it
considers to be appropriate, including granting temporary,
preliminary, or permanent relief, providing an auxiliary aid or
service, modification of policy or alternative method, or making
facilities readily accessible to and usable by individuals with
disabilities, to the extent required by title III.  In addition, a
court may award such other relief as the court considers to be
appropriate, including monetary damages to persons aggrieved, when
requested by the Attorney General.

     Furthermore, the court may vindicate the public interest by
assessing a civil penalty against the covered entity in an amount
not exceeding $50,000 for a first violation and not exceeding
$l00,000 for any subsequent violation.  Section 36.504(b) of the
rule adopts the standard of section 308(b)(3) of the Act.  This
section makes it clear that, in counting the number of previous
determinations of violations for determining whether a "first" or
"subsequent" violation has occurred, determinations in the same
action that the entity has engaged in more than one discriminatory
act are to be counted as a single violation.  A "second violation"
would not accrue to that entity until the Attorney General brought
another suit against the entity and the entity was again held in
violation.  Again, all of the violations found in the second suit
would be cumulatively considered as a "subsequent violation."

     Section 36.504(c) clarifies that the terms "monetary damages"
and "other relief" do not include punitive damages.  They do
include, however, all forms of compensatory damages, including out-
of-pocket expenses and damages for pain and suffering.

     Section 36.504(a)(3) is based on section 308(b)(2)(C) of the
Act, which provides that, "to vindicate the public interest," a
court may assess a civil penalty against the entity that has been
found to be in violation of the Act in suits brought by the
Attorney General.  In addition, {36.504(d), which is taken from
section 308(b)(5) of the Act, further provides that, in considering
what amount of civil penalty, if any, is appropriate, the court
shall give consideration to "any good faith effort or attempt to
comply with this part."  In evaluating such good faith, the court
shall consider "among other factors it deems relevant, whether the
entity could have reasonably anticipated the need for an
appropriate type of auxiliary aid needed to accommodate the unique
needs of a particular individual with a disability."

     The "good faith" standard referred to in this section is not
intended to imply a willful or intentional standard - that is, an
entity cannot demonstrate good faith simply by showing that it did
not willfully, intentionally, or recklessly disregard the law.  At
the same time, the absence of such a course of conduct would be a
factor a court should weigh in determining the existence of good
faith.

     Section 36.505 states that courts are authorized to award
attorneys fees, including litigation expenses and costs, as
provided in section 505 of the Act.  Litigation expenses include
items such as expert witness fees, travel expenses, etc.  The
Judiciary Committee Report specifies that such items are included
under the rubric of "attorneys fees" and not "costs" so that such
expenses will be assessed against a plaintiff only under the
standard set forth in Christiansburg Garment Co. v. Equal
Employment Opportunity Commission, 434 U.S. 412 (1978).  (Judiciary
report at 73.)

     Section 36.506 restates section 513 of the Act, which
encourages use of alternative means of dispute resolution.

     Section 36.507 explains that, as provided in section 506(e) of
the Act, a public accommodation or other private entity is not
excused from compliance with the requirements of this part because
of any failure to receive technical assistance. 

Section 36.508  Effective date.

     In general, title III is effective 18 months after enactment
of the Americans with Disabilities Act, i.e., January 26, 1992. 
However, there are several exceptions to this general rule
contained throughout title III.  Section 36.508 sets forth all of
these exceptions in one place.

     Paragraph (b) contains the rule on civil actions.  It states
that, except with respect to new construction and alterations, no
civil action shall be brought for a violation of this part that
occurs before July 26, 1992, against businesses with 25 or fewer
employees and gross receipts of $1,000,000 or less; and before
January 26, 1993, against businesses with 10 or fewer employees and
gross receipts of $500,000 or less.  In determining what
constitutes gross receipts, it is appropriate to exclude amounts
collected for sales taxes.

     Paragraph (c) concerns transportation services provided 
by public accommodations not primarily engaged in the business of
transporting people.  The 18-month effective date applies to 
all of the transportation provisions except those requiring 
newly purchased or leased vehicles to be accessible.  Vehicles
subject to that requirement must be accessible to and usable by
individuals with disabilities if the solicitation for the vehicle
is made on or after August 26, 1990.

Subpart F -- Certification of State Laws or Local Building Codes

     Subpart F establishes procedures to implement section
308(b)(1)(A)(ii) of the Act, which provides that, on the 
application of a State or local government, the Attorney General
may certify that a State law or local building code or similar
ordinance meets or exceeds the minimum accessibility requirements
of the Act.  In enforcement proceedings, this certification will
constitute rebuttable evidence that the law or code meets or
exceeds the ADA's requirements.

     Three significant changes, further explained below, were made
from the proposed subpart, in response to comments.  First, the
State or local jurisdiction is required to hold a public hearing on
its proposed request for certification and to submit to the
Department, as part of the information and materials in support of
a request for certification, a transcript of the hearing.  Second,
the time allowed for interested persons and organizations to
comment on the request filed with the Department ({36.605(a)(1))
has been changed from 30 to 60 days.  Finally, a new {36.608,
Guidance concerning model codes, has been added.

     Section 36.601 establishes the definitions to be used for
purposes of this subpart.  Two of the definitions have been
modified, and a definition of "model code" has been added.  First,
in response to a comment, a reference to a code "or part thereof"
has been added to the definition of "code."  The purpose of this
addition is to clarify that an entire code need not be submitted if
only part of it is relevant to accessibility, or if the
jurisdiction seeks certification of only some of the portions that
concern accessibility.  The Department does not intend to encourage
"piecemeal" requests for certification by a single jurisdiction. 
In fact, the Department expects that in some cases, rather than
certifying portions of a particular code and refusing to certify
others, it may notify a submitting jurisdiction of deficiencies and
encourage a reapplication that cures those deficiencies, so that
the entire code can be certified eventually.  Second, the
definition of "submitting official" has been modified.  The
proposed rule defined the submitting official to be the State or
local official who has principal responsibility for administration
of a code.  Commenters pointed out that in some cases more than one
code within the same jurisdiction is relevant for purposes of
certification.  It was also suggested that the Department allow a
State to submit a single application on behalf of the State, as
well as on behalf of any local jurisdictions required to follow the
State accessibility requirements.  Consistent with these comments,
the Department has added to the definition language clarifying that
the official can be one authorized to submit a code on behalf of a
jurisdiction.

     A definition of "model code" has been added in light of new
{36.608.

     Most commenters generally approved of the proposed
certification process.  Some approved of what they saw as the
Department's attempt to bring State and local codes into alignment
with the ADA.  A State agency said that this section will be the
backbone of the intergovernmental cooperation essential if the
accessibility provisions of the ADA are to be effective.

     Some comments disapproved of the proposed process as time-
consuming and laborious for the Department, although some of these
comments pointed out that, if the Attorney General certified model
codes on which State and local codes are based, many perceived
problems would be alleviated.  (This point is further addressed by
new {36.608.)

     Many of the comments received from business organizations, as
well as those from some individuals and disability rights groups,
addressed the relationship of the ADA requirements and their
enforcement, to existing State and local codes and code enforcement
systems.  These commenters urged the Department to use existing
code-making bodies for interpretations of the ADA, and to actively
participate in the integration of the ADA into the text of the
national model codes that are adopted by State and local
enforcement agencies.  These issues are discussed in preamble
section 36.406 under General comments.  

     Many commenters urged the Department to evaluate or certify
the entire code enforcement system (including any process for
hearing appeals from builders of denials by the building code
official of requests for variances, waivers, or modifications). 
Some urged that certification not be allowed in jurisdictions where
waivers can be granted, unless there is a clearly identified
decision-making process, with written rulings and notice to
affected parties of any waiver or modification request.  One
commenter urged establishment of a dispute resolution mechanism,
providing for interpretation (usually through a building official)
and an administrative appeals mechanism (generally called Boards of
Appeal, Boards of Construction Appeals, or Boards of Review),
before certification could be granted.

     The Department thoroughly considered these proposals but has
declined to provide for certification of processes of enforcement
or administration of State and local codes.  The statute clearly
authorizes the Department to certify the codes themselves for
equivalency with the statute; it would be ill-advised for the
Department at this point to inquire beyond the face of the code and
written interpretations of it.  It would be inappropriate to
require those jurisdictions that grant waivers or modifications to
establish certain procedures before they can apply for
certification, or to insist that no deviations can be permitted. 
In fact, the Department expects that many jurisdictions will allow
slight variations from a particular code, consistent with ADAAG
itself.  ADAAG includes in {2.2 a statement allowing departures
from particular requirements where substantially equivalent or
greater access and usability is provided.  Several sections
specifically allow for alternative methods providing equivalent
facilitation and, in some cases, provide examples.  (See, e.g.,
{4.31.9, Text Telephones; {7.2(2)(iii), Sales and Service
Counters.)  Section 4.1.6 includes less stringent requirements that
are permitted in alterations, in certain circumstances. 

     However, in an attempt to ensure that it does not certify a
code that in practice has been or will be applied in a manner that
defeats its equivalency with the ADA, the Department will require
that the submitting official include, with the application for
certification, any relevant manuals, guides, or any other
interpretive information issued that pertain to the code. 
({36.603(c)(1).)  The requirement that this information be provided
is in addition to the NPRM's requirement that the official provide
any pertinent formal opinions of the State Attorney General or the
chief legal officer of the jurisdiction.

     The first step in the certification process is a request for
certification, filed by a "submitting official" ({36.603).  The
Department will not accept requests for certification until after
January 26, 1992, the effective date of this part.  The Department
received numerous comments from individuals and organizations
representing a variety of interests, urging that the hearing
required to be held by the Assistant Attorney General in
Washington, D.C., after a preliminary determination of equivalency
({36.605(a)(2)), be held within the State or locality requesting
certification, in order to facilitate greater participation by all
interested parties.  While the Department has not modified the
requirement that it hold a hearing in Washington, it has added a
new subparagraph 36.603(b)(3) requiring a hearing within the State
or locality before a request for certification is filed.  The
hearing must be held after adequate notice to the public and must
be on the record; a transcript must be provided with the request
for certification.  This procedure will insure input from the
public at the State or local level and will also insure a
Washington, D.C., hearing as mentioned in the legislative history.

     The request for certification, along with supporting documents
({36.603(c)), must be filed in duplicate with the office of the
Assistant Attorney General for Civil Rights.  The Assistant
Attorney General may request further information.  The request and
supporting materials will be available for public examination at
the office of the Assistant Attorney General and at the office of
the State or local agency charged with administration and
enforcement of the code.  The submitting official must publish
public notice of the request for certification.

     Next, under {36.604, the Assistant Attorney General's office
will consult with the ATBCB and make a preliminary
determination to either (1)  find that the code is equivalent (make
a "preliminary determination of equivalency") or 
(2)  deny certification.  The next step depends on which of 
these preliminary determinations is made.

     If the preliminary determination is to find equivalency, the
Assistant Attorney General, under {36.605, will inform the
submitting official in writing of the preliminary determination and
publish a notice in the Federal Register informing the public of
the preliminary determination and inviting comment for 60 days. 
(This time period has been increased from 30 days in light of
public comment pointing out the need for more time within which to
evaluate the code.)  After considering the information received in
response to the comments, the Department will hold an informal
hearing in Washington.  This hearing will not be subject to the
formal requirements of the Administrative Procedure Act.  In fact,
this requirement could be satisfied by a meeting with interested
parties.  After the hearing, the Assistant Attorney General's
office will consult again with the ATBCB and make a final
determination of equivalency or a final determination to deny the
request for certification, with a notice of the determination
published in the Federal Register.

     If the preliminary determination is to deny certification,
there will be no hearing ({36.606).  The Department will notify the
submitting official of the preliminary determination, and may
specify how the code could be modified in order to receive a
preliminary determination of equivalency.  The Department will
allow at least 15 days for the submitting official to submit
relevant material in opposition to the preliminary denial.  If none
is received, no further action will be taken.  If more information
is received, the Department will consider it and make either a
final decision to deny certification or a preliminary determination
of equivalency.  If at that stage the Assistant Attorney General
makes a preliminary determination of equivalency, the hearing
procedures set out in {36.605 will be followed.

     Section 36.607 addresses the effect of certification.  First,
certification will only be effective concerning those features or
elements that are both (1) covered by the certified code and (2)
addressed by the regulations against which they are being
certified.  For example, if children's facilities are not addressed
by the Department's standards, and the building in question is a
private elementary school, certification will not be effective for
those features of the building to be used by children.  And if the
Department's regulations addressed equip-
ment but the local code did not, a building's equipment would not
be covered by the certification.

     In addition, certification will be effective only for the
particular edition of the code that is certified.  Amendments will
not automatically be considered certified, and a submitting
official will need to reapply for certification of the changed or
additional provisions.  

     Certification will not be effective in those situations where
a State or local building code official allows a facility to be
constructed or altered in a manner that does not follow the
technical or scoping provisions of the certified code.  Thus, if an
official either waives an accessible element or feature or allows
a change that does not provide equivalent facilitation, the fact
that the Department has certified the code itself will not stand as
evidence that the facility has been constructed or altered in
accordance with the minimum accessibility requirements of the ADA. 
The Department's certification of a code is effective only with
respect to the standards in the code; it is not to be interpreted
to apply to a State or local government's application of the code. 
The fact that the Department has certified a code with provisions
concerning waivers, variances, or equivalent facilitation shall not
be interpreted as an endorsement of actions taken pursuant to those
provisions.

     The final rule includes a new {36.608 concerning model codes. 
It was drafted in response to concerns raised by numerous
commenters, many of which have been discussed under General
comments ({36.406). It is intended to assist in alleviating the
difficulties posed by attempting to certify possibly tens of
thousands of codes.  It is included in recognition of the fact that
many codes are based on, or incorporate, model or consensus
standards developed by nationally recognized organizations (e.g.,
the American National Standards Institute (ANSI); Building
Officials and Code Administrators (BOCA) International; Council of
American Building Officials (CABO) and its Board for the
Coordination of Model Codes (BCMC); Southern Building Code Congress
International (SBCCI)).  While the Department will not certify or
"precertify" model codes, as urged by some commenters, it does wish
to encourage the continued viability of the consensus and model
code process consistent with the purposes of the ADA.

     The new section therefore allows an authorized representative
of a private entity responsible for developing a model code to
apply to the Assistant Attorney General for review of the code. 
The review process will be informal and will not be subject to the
procedures of {{36.602 through 36.607.  The result of the review
will take the form of guidance from the Assistant Attorney General
as to whether and in what respects the model code is consistent
with the ADA's requirements.  The guidance will not be binding on
any entity or on the Department; it will assist in evaluations of
individual State or local codes and may serve as a basis for
establishing priorities for consideration of individual codes.  The
Department anticipates that this approach will foster further
cooperation among various government levels, the private entities
developing standards, and individuals with disabilities.

List of Subjects in 28 CFR Part 36

     Administrative practice and procedure, Alcoholism, Americans
with disabilities, Buildings, Business and industry, Civil rights,
Consumer protection, Drug abuse, Handicapped, Historic
preservation, Reporting and recordkeeping requirements.

     By the authority vested in me as Attorney General by 28 U.S.C.
509, 510, 5 U.S.C. 301, and section 306(b) of the Americans with
Disabilities Act, Pub. L. 101-336, and for the reasons set forth in
the preamble, Chapter I of Title 28 of the Code of Federal
Regulations is amended by adding a new Part 36 to read as follows: