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Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities. Appendix A to Part 3. Guidance on Revisions to ADA Regulation on Nondiscrimination on the Basis of Disability by Public Accommodations and Commercial Facilities. Note: This Appendix contains guidance providing a section- by- section analysis of the revisions to 2.
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CFR part 3. 6 published on September 1. Section- By- Section Analysis and Response to Public Comments This section provides a detailed description of the Department's changes to the title III regulation, the reasoning behind those changes, and responses to public comments received on these topics. The Section- by- Section Analysis follows the order of the title III regulation itself, except that if the Department has not changed a regulatory section, the unchanged section has not been mentioned. Subpart A—General Section 3. Definitions . B and D (2.
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Department has adopted in this final rule. These terms are included in the definitions section for ease of reference. This is an editorial change. In contrast, the term .
A)(iv); 2. 8 CFR 3. It has been the Department's view that newly constructed or altered facilities are also existing facilities subject to title III's continuing barrier removal obligation, and that view is made explicit in this rule. The classification of facilities under the ADA is neither static nor mutually exclusive. Newly constructed or altered facilities are also existing facilities.
A newly constructed facility remains subject to the accessibility standards in effect at the time of design and construction, with respect to those elements for which, at that time, there were applicable ADA Standards. That same facility, however, after construction, is also an existing facility, and subject to the public accommodation's continuing obligation to remove barriers where it is readily achievable to do so. The fact that the facility is also an existing facility does not relieve the public accommodation of its obligations under the new construction requirements of this part.
Rather, it means that in addition to the new construction requirements, the public accommodation has a continuing obligation to remove barriers that arise, or are deemed barriers, only after construction. Such barriers include but are not limited to the elements that are first covered in the 2. Standards, as that term is defined in . At some point, the same facility may undergo alterations, which are subject to the alterations requirements in effect at that time. This facility remains subject to its original new construction standards for elements and spaces not affected by the alterations; the facility is subject to the alterations requirements and standards in effect at the time of the alteration for the elements and spaces affected by the alteration; and, throughout, the facility remains subject to the continuing barrier removal obligation. The Department's enforcement of the ADA is premised on a broad understanding of . Title III's barrier removal provisions strike the appropriate balance between ensuring that accessibility advances are reflected in the built environment and mitigating the costs of those advances to public accommodations.
With adoption of the final rule, public accommodations engaged in barrier removal measures will now be guided by the 2. Standards, defined in . The NPRM included the following proposed definition of . While the Department intended the proposed definition to provide clarity with respect to public accommodations' continuing obligation to remove barriers where it is readily achievable to do so, some commenters pointed out arguable ambiguity in the language and the potential for misapplication of the rule in practice.
The Department received a number of comments on this issue. The commenters urged the Department to clarify that all buildings remain subject to the standards in effect at the time of their construction, that is, that a facility designed and constructed for first occupancy between January 2. As established by this rule, existing facility means a facility in existence on any given date, without regard to whether the facility may also be considered newly constructed or altered under this part. Thus, this definition reflects the Department's longstanding interpretation that public accommodations have obligations in existing facilities that are independent of but may coexist with requirements imposed by new construction or alteration requirements in those same facilities.
This section defines . Since the issuance of the 1. III regulation, however, the choices of mobility devices available to individuals with disabilities have increased dramatically. The Department has received complaints about and has become aware of situations where individuals with mobility disabilities have utilized devices that are not designed primarily for use by an individual with a mobility disability, including the Segway. The Department also has received questions from public accommodations and individuals with mobility disabilities concerning which mobility devices must be accommodated and under what circumstances. Indeed, there has been litigation concerning the legal obligations of covered entities to accommodate individuals with mobility disabilities who wish to use an electronic personal assistance mobility device (EPAMD), such as the Segway. The Department has participated in such litigation as amicus curiae.
Walt Disney World Co., No. Orl–3. 1KRS, 2. 00. WL 3. 24. 20. 28 (M. D. Much of the litigation has involved shopping malls where businesses have refused to allow persons with disabilities to use EPAMDs.
Simon Property Group, No. RDR, 2. 00. 8 WL 4. D. 1. 5, 2. 00. 8) (enjoining mall from prohibiting the use of a Segway.
In response to questions and complaints from individuals with disabilities and covered entities concerning which mobility devices must be accommodated and under what circumstances, the Department began developing a framework to address the use of unique mobility devices, concerns about their safety, and the parameters for the circumstances under which these devices must be accommodated. As a result, the Department's NPRM proposed two new approaches to mobility devices. First, the Department proposed a two- tiered mobility device definition that defined the term . Section 3. 6. 3. 11(b) of the NPRM proposed that a public accommodation . The Department sought public comment with regard to whether these steps would, in fact, achieve clarity on these issues. Toward this end, the Department's NPRM asked several questions relating to the definitions of . Because the questions in the NPRM that concerned mobility devices and their accommodation were interrelated, many of the commenters' responses did not identify the specific question to which they were responding.
Instead, commenters grouped the questions together and provided comments accordingly. Most commenters spoke to the issues addressed in the Department's questions in broad terms and using general concepts. As a result, the responses to the questions posed are discussed below in broadly grouped issue categories rather than on a question- by- question basis. Two- tiered definitional approach. Commenters supported the Department's proposal to use a two- tiered definition of mobility device.
Commenters nearly universally said that wheelchairs always should be accommodated and that they should never be subject to an assessment with regard to their admission to a particular public accommodation. In contrast, the vast majority of commenters indicated they were in favor of allowing public accommodations to conduct an assessment as to whether, and under which circumstances, other power- driven mobility devices will be allowed onsite. Many commenters also indicated their support for the two- tiered approach in responding to questions concerning the definition of . They also favored this concept because it recognizes technological developments and that innovative uses of varying devices may provide increased access to individuals with mobility disabilities. While two business associations indicated that they opposed the concept of . They indicated that such devices create a host of safety, cost, and fraud issues that do not exist with wheelchairs. On balance, however, business commenters indicated that they support the establishment of a two- tiered regulatory approach because defining .
Virtually all of these commenters indicated that their support for the dual approach and the concept of other power- driven mobility devices was, in large measure, due to the other power- driven mobility device assessment factors in . By maintaining the two- tiered approach to mobility devices and defining . Moreover, the Department believes the two- tiered approach gives public accommodations guidance to follow in assessing whether reasonable modifications can be made to permit the use of other power- driven mobility devices on- site and to aid in the development of policies describing the circumstances under which persons with disabilities may use such devices. The two- tiered approach neither mandates that all other power- driven mobility devices be accommodated in every circumstance, nor excludes these devices from all protection. This approach, in conjunction with the factor assessment provisions in . As will be discussed in more detail below, the assessment factors in .
In making such a determination, a public accommodation must consider the device's type, size, weight dimensions, and speed; the facility's volume of pedestrian traffic; the facility's design and operational characteristics; whether the device conflicts with legitimate safety requirements; and whether the device poses a substantial risk of serious harm to the immediate environment or natural or cultural resources, or conflicts with Federal land management laws or regulations.