[Federal Register Volume 59, Number 117 (Monday, June 20, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14228]


[[Page Unknown]]

[Federal Register: June 20, 1994]


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Part III





Department of Justice





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Office of the Attorney General



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28 CFR Part 35, et al.



Nondiscrimination on the Basis of Disability in the State and Local 
Government Services; Public Accommodations and Commercial Facilities; 
Accessibility Standards; Proposed Rule
DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Parts 35, 36, and 37

[Order No. 1889-94]

 

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

AGENCY: Department of Justice.

ACTION: Proposed rule.

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SUMMARY: This proposed rule would amend the regulations of the 
Department of Justice (Department) implementing titles II and III of 
the Americans with Disabilities Act (ADA) to incorporate, as the ADA 
Standards for Accessible Design, the ADA Accessibility Guidelines for 
Buildings and Facilities as they are revised in the interim rule with 
request for comments being published by the Architectural and 
Transportation Barriers Compliance Board (Access Board) elsewhere in 
this issue of the Federal Register. In so doing, the proposed rule 
would establish new ADA standards for construction and alterations 
covered by the Department's title II regulations. (The guidelines set 
forth in the Access Board's interim rule are effective only as guidance 
for the Departments of Justice and Transportation; they have no effect 
on the public and should not be used by the public until such time as 
the Department of Justice and the Department of Transportation adopt 
them as standards.) The proposed rule would also add new enforcement 
procedures to subpart F of the title II regulation.

DATES: To be assured of consideration, comments must be in writing and 
must be received on or before August 19, 1994. Comments that are 
received after the closing date will be considered to the extent 
practicable.

ADDRESSES: Comments on this proposed rule should be sent to: Merrily A. 
Friedlander, Acting Chief, Coordination and Review Section, Civil 
Rights Division, U.S. Department of Justice, Rulemaking Docket 007, 
P.O. Box 66118, Washington, DC 20035-6118. However, comments on the 
proposed ADA Standards for Accessible Design, published as an interim 
rule by the Access Board elsewhere in this issue of the Federal 
Register, should be sent to: Office of the General Counsel, 
Architectural and Transportation Barriers Compliance Board, 1331 F 
Street NW., suite 1000, Washington, DC 20004-1111. For further 
information on comments, see the beginning of SUPPLEMENTARY 
INFORMATION.
    Comments submitted to the Department of Justice will be available 
for public inspection in Room 4014, 1425 New York Avenue NW., 
Washington, DC, from 9 a.m. to 5 p.m., Monday through Friday, except 
legal holidays, from July 5, 1994 until the Department publishes this 
rule in final form. Persons who need assistance to review the comments 
will be provided with appropriate aids such as readers or print 
magnifiers.

FOR FURTHER INFORMATION CONTACT: Merrily A. Friedlander, Acting Chief, 
Coordination and Review Section, Civil Rights Division, U.S. Department 
of Justice, Washington, DC 20530, (202) 514-0301 (Voice), (202) 514-
0383 (TDD) (the Division's ADA Information Line). These telephone 
numbers are not toll-free numbers.
    Copies of this rule are available in the following alternative 
formats: large print, Braille, electronic file on computer disk, and 
audio-tape. Copies may be obtained from the Coordination and Review 
Section at (202) 514-0301 (Voice) or (202) 514-0383 (TDD). The rule is 
also available on electronic bulletin board at (202) 514-6193. These 
telephone numbers are not toll-free numbers.

SUPPLEMENTARY INFORMATION: All timely comments received by the Access 
Board on its guidelines published December 21, 1992 (57 FR 60612), and 
on its interim rule published today in the Federal Register will be 
deemed by the Department to have been submitted in response to this 
proposed rule and will be thoroughly analyzed and considered by the 
Department prior to the adoption of any final rule. Therefore, it is 
not necessary for any comments submitted to the Board on its proposed 
or interim rules to be resubmitted to the Department.

Background

    On July 26, 1991, the Department published its final rules 
implementing titles II and III of the Americans with Disabilities Act, 
Pub. L. 101-336, 42 U.S.C. 12131-12134 and 12181-12189, which prohibits 
discrimination on the basis of disability by public entities and in 
places of public accommodation and commercial facilities. 56 FR 35694, 
35544. The Department's implementing regulations were codified at 28 
CFR, parts 35 and 36. Subtitle A of title II of the ADA protects 
qualified individuals with disabilities from discrimination on the 
basis of disability in the services, programs, or activities of all 
state and local governments. It extends the prohibition of 
discrimination in federally assisted programs established by section 
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, to all activities 
of state and local governments, including those that do not receive 
federal financial assistance, and incorporates specific prohibitions of 
discrimination on the basis of disability from titles I, III, and V of 
the ADA. Title III of the ADA protects qualified individuals with 
disabilities from discrimination on the basis of disability by public 
accommodations and in commercial facilities.
    This proposed rule would amend 28 CFR 35.151 and 36.406 to adopt 
the ADA Accessibility Guidelines for Buildings and Facilities (ADAAG), 
as revised by the Access Board in their interim rule that is published 
elsewhere in this issue of the Federal Register, as the ADA Standards 
for Accessible Design (ADA Standards) for new construction and 
alterations covered by the Department's title II regulation. The ADA 
Standards would apply to facilities designed, constructed, or altered 
after the effective date of the amendment to Sec. 35.151. The proposed 
rule would also remove the original ADA Standards for Accessible 
Design, 28 CFR part 36, Appendix A; add the ADA Standards, as amended 
by the Access Board's interim rule, as Appendix A to part 37; and amend 
parts 35 and 36 to correctly reference the redesignated ADA Standards. 
Finally, the proposed rule would amend the Compliance Procedures in 
subpart F of part 35 to incorporate procedures used under agency 
regulations implementing section 504 of the Rehabilitation Act for 
federally assisted programs and activities.

Accessibility Standard

    Section 504 of the ADA requires the Access Board to issue 
supplemental Minimum Guidelines and Requirements for Accessible Design 
of buildings and facilities subject to the ADA, including titles II and 
III. Sections 204(c) and 306(c) of the ADA provide that the Attorney 
General shall promulgate regulations implementing titles II and III 
that are consistent with the Access Board's ADA guidelines. In issuing 
its final title II regulation, the Department explained that it 
intended to amend the regulation to adopt the new accessibility 
standards for title II after the Access Board had amended its ADA 
Accessibility Guidelines to include specific requirements applicable to 
buildings and facilities operated by entities subject to title II. The 
Access Board is now publishing its interim guidelines for title II 
elsewhere in this issue of the Federal Register, and this proposed rule 
would adopt those guidelines. Rather than having the ADA Standards for 
Accessible Design published twice, as an appendix to both parts 35 and 
36, this proposed rule would adopt the revised ADA Standards as 
Appendix A to part 37. Parts 35 and 36 are amended to reference those 
standards.
    The Access Board received public comments on its proposed 
guidelines, published on December 21, 1992, and is soliciting comments 
on its interim rule, which is published elsewhere in this issue of the 
Federal Register. The Department, as a member of the Access Board, will 
be actively involved in the review and analysis of the comments that 
the Access Board receives on its interim guidelines and in making any 
revisions to the guidelines in response to those comments. Therefore, 
the Department has proposed to adopt the guidelines, as revised by the 
Access Board in its final rule, as the ADA Standards for Accessible 
Design. Comments submitted to the Access Board in response either to 
its Notice of Proposed Rulemaking or its Interim Rule, therefore, will 
also be considered by the Department as comments on this proposed rule, 
and need not be separately submitted to the Department. Comments 
previously received by the Access Board concerning provision of unisex 
restrooms will be considered by the Department of Justice through 
future rulemaking or other action.
    28 CFR 35.151 would be replaced by Secs. 35.151-35.155 of the 
proposed regulation. At present, Sec. 35.151 provides that those 
buildings that are constructed or altered by, on behalf of, or for the 
use of a public entity shall be designed, constructed, or altered to be 
readily accessible to and usable by individuals with disabilities. 
Current Sec. 35.151(c) establishes two standards for accessible new 
construction and alteration. Under paragraph (c), design, construction, 
or alteration of facilities in conformance with the Uniform Federal 
Accessibility Standards (UFAS) or with the Americans with Disabilities 
Act Accessibility Guidelines for Buildings and Facilities (ADAAG) is 
deemed to comply with the requirements of this section with respect to 
those facilities (except that, if ADAAG is chosen, the elevator 
exemption does not apply). ADAAG was initially developed by the Access 
Board as a guideline for accessibility to buildings and facilities that 
are subject to title III. It was adopted by the Department as the 
standard for places of public accommodation and commercial facilities 
under title III of the ADA and was published as Appendix A to the 
Department's regulation implementing title III, 28 CFR part 36, and 
amended on January 18, 1994, 59 FR 2674. This rule removes that 
appendix and adds the Access Board's revised guidelines as Appendix A 
to 28 CFR part 37.
    The proposed rule would revise 28 CFR 35.151 and add four new 
sections, 28 CFR 35.152-35.155, which follow the format of parallel 
provisions in the Department's title III regulation at 28 CFR part 36, 
subpart D.

Section 35.150  Existing Facilities

    The proposed rule would amend Sec. 35.150(a)(2), which provides 
that, in ensuring access to programs in existing facilities, a public 
entity is not required to take any action that would threaten or 
destroy the historic significance of an historic property. The proposed 
amendment to Sec. 35.150(a)(2) would incorporate the procedures set out 
in section 4.1.7 of the ADA Standards for determining whether a 
physical alteration would threaten or destroy the historic significance 
of an historic property.
    The proposed rule would also amend Sec. 35.150(b)(1) to make clear 
that the path of travel requirements of Sec. 35.153 do not apply to 
measures taken solely to comply with program accessibility 
requirements. This amendment is consistent with Sec. 36.304(d)(1) of 
the title III regulation, which states that ``[t]he path of travel 
requirements of Sec. 36.403 shall not apply to measures taken solely to 
comply with the barrier removal requirements of this section.''

Section 35.151  New Construction

    Section 35.151, as revised, would require that newly constructed 
facilities be readily accessible to and usable by individuals with 
disabilities. Paragraph 35.151(b)(2) of the proposed rule incorporates 
the ADA's ``structural impracticability'' exception for new 
construction. Under that exception, in new construction, full 
compliance with the requirements of the ADA Standards is not required 
where a public entity can demonstrate that it is structurally 
impracticable to meet the requirements. However, full compliance will 
be considered structurally impracticable only in those rare 
circumstances when the unique characteristics of terrain prevent the 
incorporation of accessibility features.
    The statute dictates that regulations promulgated under title II of 
the ADA ``shall be consistent with [the other titles of] this Act'' as 
well as with section 504 of the Rehabilitation Act of 1973. Pub. L. No. 
101-336, Sec. 204(b). Furthermore, the legislative history of the ADA 
indicates that ``the forms of discrimination prohibited by [title II 
are] identical to those set out in the applicable provisions of titles 
I and III.'' H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 84 
(1990). Thus the structural impracticability exception for public 
accommodations and commercial facilities contained in the Department of 
Justice title III regulations at 28 CFR 36.401(c) has been incorporated 
in Sec. 35.151 and is included in the ADA Standards at 
Sec. 4.1.1(5)(a). Other revisions to this rule and to the ADA Standards 
that render this rule and the ADA Standards consistent with title III, 
which are discussed below, are based on this same statutory mandate and 
legislative history.
    Consistent with the legislative history of the ADA, the 
Department's proposed rule states that the structural impracticability 
exception will apply only in rare and unusual circumstances where 
unique characteristics of terrain make accessibility unusually 
difficult. This exception is the same as the exception in the 
Department's title III regulation, 28 CFR 36.401(c), and is narrower 
than the exception in the Department of Housing and Urban Development's 
Fair Housing Accessibility Guidelines (56 FR 9472 (1991)), which 
generally would allow exceptions from accessibility requirements, or 
allow compliance with less stringent requirements, on sites with slopes 
exceeding 10%.
    The limited structural impracticability exception adopted by the 
proposed rule would allow deviations from accessibility requirements 
only where unique characteristics of terrain prevent the incorporation 
of accessibility features or where providing accessibility would 
destroy the physical integrity of a facility. A situation in which a 
building must be built on stilts because of its location in marshlands 
or over water is an example of one of the few situations in which the 
exception for structural impracticability would apply.
    In addition, if full compliance with the accessibility standards 
would be structurally impracticable, compliance is required to the 
extent that it is not structurally impracticable. Any portion of the 
facility that can be made accessible must be made accessible to the 
extent that it is not structurally impracticable. In addition, if 
providing accessibility to individuals with certain disabilities (e.g., 
those who use wheelchairs) would be structurally impracticable, 
accessibility must nonetheless be ensured to persons with other types 
of disabilities (e.g., those who use crutches or who have sight, 
hearing, or mental impairments) in accordance with this section.

Section 35.152  Alterations: General

    New Sec. 35.152 of the proposed rule establishes the requirements 
for alterations. It includes a definition of ``alteration'' based on 
the Department's title III regulation. The term ``resurfacing'' is 
added to this definition to be consistent with the Access Board's 
proposed change to the definition of alteration in ADAAG Sec. 3.5. It 
also adds a definition of the phrase ``to the maximum extent 
feasible,'' as used in Sec. 35.152(a), which requires that alterations 
be done, to the maximum extent feasible, in such manner that the 
altered portion of the facility is accessible. That proposed definition 
is taken from the Department's title III regulation, 28 CFR 36.402(c), 
and provides that the phrase applies to the occasional case where the 
nature of an existing facility makes it virtually impossible to comply 
fully with applicable accessibility standards through a planned 
alteration. In the occasional cases in which full compliance is 
impossible, alterations shall provide the maximum physical 
accessibility feasible. Like the structural impracticability exception 
for new construction, it requires that the facility be made accessible 
to persons with other types of disabilities even if providing 
accessibility for individuals who use wheelchairs would not be 
feasible.

Section 35.153  Alterations: Path of Travel

    Proposed Sec. 35.153, Alterations: Path of Travel, is also based on 
the title III regulation. UFAS and ADAAG both contain requirements for 
provision of an accessible ``path of travel'' to the altered area when 
an existing facility is altered, although the circumstances that 
trigger the requirements are somewhat different under each statute. 
Under Sec. 4.1.6(3) of UFAS, an accessible route to the altered area, 
an accessible entrance, and (where applicable) accessible toilet 
facilities must be provided when a substantial alteration is made to an 
existing building. An alteration is considered ``substantial'' if the 
total cost of all alterations within any twelve-month period amounts to 
50% or more of the full and fair cash value of the building. The 
proposed rule eliminates the UFAS ``substantial alteration'' basis for 
path of travel requirements because it eliminates UFAS as an option.
    The path of travel requirements of proposed Sec. 35.153 are based 
on section 303(a)(2) of the ADA, which provides that, when an entity 
undertakes an alteration to a place of public accommodation or 
commercial facility that affects or could affect the usability of or 
access to an area that contains a primary function, the entity shall 
ensure that, to the maximum extent feasible, the path of travel to the 
altered area, and the restrooms, telephones, and drinking fountains 
serving the altered area, are readily accessible to and usable by 
individuals with disabilities, including individuals who use 
wheelchairs.
    Paragraph (b)(1) of proposed Sec. 35.153 provides that areas such 
as mechanical rooms, boiler rooms, supply storage rooms, employee 
lounges and locker rooms, janitorial closets, entrances, and corridors 
are not areas containing a primary function. Nor are restrooms areas 
containing a primary function unless the provision of restrooms is the 
major reason that the facility is maintained by a public entity, such 
as at a highway rest stop. In that situation, a restroom would be 
considered to be an ``area containing a primary function'' of the 
facility.
    The requirement for an accessible path of travel does not apply, 
however, to the extent that the cost and scope of alterations to the 
path of travel is disproportionate to the cost of the overall 
alteration, as determined under criteria established by the Attorney 
General. Sections 227 and 242 of the ADA adopt the same requirement for 
public transportation facilities under title II.
    Section 4.1.6(2) of the ADA Standards, which is not modified by the 
Access Board's proposed amendments, adopts the statutory path of travel 
requirement, and Sec. 36.403 of the Department's title III regulation 
establishes the criteria for determining when the cost of alterations 
to the path of travel are ``disproportionate'' to the cost of the 
overall alteration. The proposed rule would add a new Sec. 35.153(d) to 
adopt the same disproportionality criteria for facilities altered by 
public entities as are applied to private entities under title III. 
Alterations made to provide an accessible path of travel to the altered 
area would be deemed disproportionate to the overall alteration when 
the cost exceeds 20% of the cost of the alteration to the primary 
function area.

Section 35.154  Alterations: Historic Preservation

    Proposed Sec. 35.154 would incorporate the procedures set out in 
section 4.1.7 of the ADA Standards for determining whether a physical 
alteration would threaten or destroy the historic significance of an 
historic property and would replace Sec. 35.151(d) of the Department's 
current title II regulation.

Section 35.155  Standards for New Construction and Alterations

    Proposed Sec. 35.155 provides that, as of the effective date of 
this amendment, new construction and alterations subject to the 
regulation shall comply with the ADA Standards for Accessible Design 
published as Appendix A to 28 CFR part 37 in this publication. Appendix 
A to 28 CFR part 37, which the proposed rule would adopt as the ADA 
Standards for Accessible Design, would incorporate the text of the 
revised ADAAG, which is published as an interim rule elsewhere in 
today's Federal Register.
    As originally published, the ADA Standards consisted of nine main 
sections and a separate appendix. Sections 1 through 3 contain general 
provisions and definitions. Section 4 contains scoping provisions and 
technical specifications applicable to all covered buildings and 
facilities. Sections 5 through 9 are special application sections and 
contain additional requirements for restaurants and cafeterias, medical 
care facilities, business and mercantile facilities, libraries, and 
transient lodging. Section 10, which established requirements for 
transportation facilities, was added on January 18, 1994 (59 FR 2674). 
The appendix to the ADA Standards contains additional information to 
aid in understanding the technical specifications.
    The Department is now proposing to supplement the original ADA 
Standards by adding specific requirements applicable to public 
entities. These requirements are set out in sections 11 through 14 of 
the Access Board's interim guidelines, which are special application 
sections for facilities covered by title II. Section 11 would apply to 
Judicial, Legislative, and Regulatory Facilities; section 12 to 
Detention and Correctional Facilities; section 13 to Accessible 
Residential Housing subject to title II; and section 14 to Public 
Rights-of-Way. The Department's proposed rule would also amend certain 
general requirements of the ADA Standards to clarify application to 
facilities covered by title II. (It would, for example, clarify that 
the elevator exemption applies to places of public accommodation and 
commercial facilities, but not to facilities covered by title II.)
    Section 35.151 of the current regulation applies to design, 
construction, and alteration of facilities if the construction was 
commenced after the effective date of the regulation, January 26, 1992. 
Facilities under design for new construction on that date were governed 
by that section if the date that bids were invited fell after the 
effective date. Alterations were deemed to have commenced after January 
26, 1992, if the physical alteration of the property began after that 
date.
    Paragraph (c) of Sec. 35.151, which provides that public entities 
could use either UFAS or ADAAG as the accessibility standard, would be 
replaced by Sec. 35.155, which adopts the ADA Standards (i.e., the 
Access Board's ADAAG as revised in the interim rule) as the applicable 
standard, as of the effective date of the amendment. Consistent with 
federal practice under section 504, the new standard to be adopted by 
this proposed amendment would not be applied retroactively. Facilities 
that were designed, constructed, or altered in conformance with the 
requirements of Sec. 35.151 prior to the effective date of this 
proposed amendment would not be required to be retrofitted to conform 
to the new standard.
    Thus, newly constructed or altered facilities would continue to be 
covered by either UFAS or ADAAG if the construction or alteration 
commenced between January 26, 1992, and the effective date of the 
proposed amendments.
    Proposed Sec. 35.155 could create a potential conflict between the 
revised regulation and the existing agency regulations implementing 
section 504 of the Rehabilitation Act for federally assisted programs. 
These section 504 regulations require that newly constructed or altered 
facilities be readily accessible to and usable by individuals with 
disabilities and provide that facilities designed, constructed, or 
altered in conformance with UFAS shall be deemed to comply with that 
requirement. Public entities that receive federal financial assistance, 
therefore, would be required by this regulation to follow the ADA 
Standards, while, under section 504, they could also be required to 
follow UFAS. This overlap between the requirements of title II of the 
ADA and section 504 of the Rehabilitation Act was one of the reasons 
that the current regulation allows public entities the option of using 
either UFAS or ADAAG. Pursuant to its authority under Executive Order 
12,250 for coordination of implementation and enforcement of section 
504, therefore, the Department has advised the federal agencies that 
have regulations implementing section 504 for their federally assisted 
programs that facilities designed, constructed, or altered by a public 
entity in conformance with the proposed ADAAG should be deemed to 
comply with the requirements for new construction and alterations of 
any regulation implementing section 504 of the Rehabilitation Act that 
applies to that public entity. Private entities that receive federal 
financial assistance would continue to be governed by the standards in 
any applicable regulation implementing section 504. It is expected 
that, when ADA Standards proposed in this rule are finalized, the 
agencies with enforcement responsibilities under section 504 will amend 
their regulations to adopt the ADA Standards as the standard for new 
construction and alterations. In the interim, the agencies that enforce 
section 504 should not require public entities to conform to both UFAS 
and ADAAG.

Enforcement Procedures

    Subpart F of the current regulation establishes administrative 
procedures for enforcement of title II of the ADA. Section 203 of the 
ADA adopts the ``remedies, procedures, and rights'' provided in section 
505 of the Rehabilitation Act, 29 U.S.C. 794a, as the enforcement 
procedures for title II. Section 505, in turn, incorporates by 
reference the remedies, procedures, and rights set forth in title VI of 
the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). Section 204 
of the ADA, which requires the Department to issue regulations to 
implement subtitle A of title II, requires that the regulations be 
consistent with the section 504 coordination regulation for federally 
assisted programs and activities at 28 CFR Part 41. The House Committee 
on Education and Labor explained that it expected the Attorney General 
to use the section 504 enforcement procedures as the model for title II 
enforcement. H.R. Rep. No. 485, 101st Cong., 2d Sess., pt. 2, at 98 
(1990). See also S. Rep. No. 116, 101st Cong., 1st Sess., at 57-58 
(1989).
    As required by sections 203 and 204(b) of the ADA, the proposed 
enforcement procedures are the procedures for enforcement of section 
504, which, in turn, adopt the enforcement procedures for title VI. 
Title VI, which prohibits discrimination on the basis of race, color, 
or national origin in federally assisted programs and activities, is 
enforced by the federal agencies that provide the federal financial 
assistance to the covered programs and activities in question. If 
voluntary compliance cannot be achieved, federal agencies enforce title 
VI either by the termination of federal funds to a program or activity 
that is found to discriminate, following an administrative hearing, or 
by a referral to the Department of Justice for judicial enforcement.
    Title II of the ADA extended the requirements of section 504 to all 
services, programs, and activities of state and local governments, not 
only those that receive federal financial assistance. Subpart F of the 
Department's original regulation establishes basic procedures to be 
followed by the agencies designated in subpart G for processing 
complaints against state and local government entities when the 
designated agency does not have jurisdiction under section 504. As 
required by section 204(b) of the ADA, these procedures are consistent 
with the Department's coordination regulation for section 504 of the 
Rehabilitation Act, 28 CFR 41.5(a)(1), which directs agencies to adopt 
the enforcement procedures of their title VI regulations for 
enforcement of section 504. Although section 203 of the ADA mandates 
that the title II procedures be the same as the section 504 procedures, 
the final rule did not detail procedures for investigations other than 
those based on individual complaints. Nor did it include requirements 
for cooperation by public entities in investigations, as required under 
title VI. This proposed rule would clarify Secs. 35.172 and 35.174 of 
subpart F by specifically incorporating the language of the regulations 
implementing title VI and section 504 for federally assisted programs 
with respect to those provisions.
    Section 35.172 of the Department's current regulation requires 
designated agencies to investigate all complete complaints for which 
they were responsible as determined under Sec. 35.171. It requires the 
designated agency to issue a Letter of Findings at the conclusion of 
the investigation if the complaint was not resolved informally, and to 
attempt to negotiate a voluntary compliance agreement if a violation 
was found. It does not, however, include specific procedural 
requirements for investigations, and does not address compliance 
reviews that are not based on individual complaints.
    Proposed Sec. 35.172, captioned Investigations and Compliance 
reviews, makes clear that the same procedures that apply to complaint 
investigations also apply to compliance reviews that are not initiated 
by receipt of a complaint, but rather are based on other information 
indicating that discrimination exists in a service, program, or 
activity covered by this part. This provision is consistent with the 
Department's procedures for enforcing title VI at 28 CFR 42.107, as 
required by the section 504 coordination regulation at 28 CFR 
41.5(a)(1).
    Paragraph (e) of proposed Sec. 35.172 explicitly spells out the 
agency's authority to require a public entity to cooperate in the 
investigation by permitting access by the designated agency to its 
records and other sources of information and to its facilities. It also 
makes clear that access by the designated agency may not be barred on 
the basis of considerations of privacy or confidentiality and that 
confidential information obtained by the designated agency shall not be 
disclosed except where necessary in formal enforcement proceedings or 
where otherwise required by law. These provisions of the proposed rule 
are based on the enforcement procedures for title VI and section 504 in 
federally assisted programs, e.g., 28 CFR 42.106 (Department of Justice 
title VI regulation, as incorporated in the Department of Justice 
section 504 regulation by 28 CFR 42.530); 45 CFR 80.6, 80.7 (Department 
of Health and Human Services).
    Section 35.173 of the current regulation establishes requirements 
for voluntary compliance agreements and would not be changed by the 
proposed rule.
    Section 35.174 of the current regulation and Sec. 35.174(a) of the 
proposed regulation provide for referral of a matter to the Department 
of Justice when a public entity declines to enter into voluntary 
compliance negotiations or when negotiations are unsuccessful. The 
proposed rule adds a new Sec. 35.174(b), which provides that the 
designated agency may refer the matter to the Department with a 
recommendation for appropriate action or use any other means authorized 
by law to achieve compliance when there appears to be a failure or 
threatened failure to comply with this part that cannot be corrected by 
informal means. This provision is taken from language in existing title 
VI and section 504 regulations for federally assisted programs. See, 
e.g., 28 CFR 42.108; 45 CFR 80.8.

ADA Standards for Accessible Design

    This proposed rule would amend the regulations of the Department of 
Justice implementing titles II and III of the ADA to incorporate, as 
the ADA Standards for Accessible Design, the ADA Accessibility 
Guidelines for Buildings and Facilities, currently Appendix A to 28 CFR 
Part 36, as they are revised in the Access Board's interim rule 
published elsewhere in this issue of the Federal Register. (The 
guidelines set forth in the Access Board's interim rule are effective 
only as guidance for the Departments of Justice and Transportation; 
they have no effect on the public and should not be used by the public 
until such time as the Department of Justice and the Department of 
Transportation adopt them as standards.) The ADA Standards will be set 
forth in full in the new part 37 of 28 CFR when this rule is printed in 
final.
    The ADA Standards set out in the Access Board's interim rule 
supplement the original ADA Standards by adding specific requirements 
applicable to public entities. These requirements are set out in 
sections 11 through 14 of the Access Board's interim guidelines, which 
are special application sections for facilities covered by title II. 
Section 11 would apply to Judicial, Legislative, and Regulatory 
Facilities; section 12 to Detention and Correctional Facilities; 
section 13 to Accessible Residential Housing subject to title II; and 
section 14 to Public Rights-of-Way. For a section-by-section analysis 
of these requirements, see the Access Board's preamble to its interim 
rule published in today's Federal Register.
    In addition to purely editorial changes, the Access Board's interim 
rule contains several substantive changes that needed to be made to 
Secs. 3, 4, 7, and 10 of ADAAG, either as a result of the addition of 
new sections 11-14 or to make certain provisions of ADAAG specifically 
applicable to title II facilities. These changes are discussed below.
    In Sec. 3.5, the definition of ``alteration'' is revised to 
explicitly cover pedestrian facilities in the public right-of-way and 
to include resurfacing. This change is consistent with the decision in 
Kinney v. Yerusalim, 812 F. Supp. 547 (E.D.Pa. 1993), aff'd, 9 F.3d 
1067 (3d Cir. 1993), cert. denied, 114 S. Ct. 1545 (1994), holding that 
resurfacing of a street constitutes an alteration under the ADA. Also 
in Sec. 3.5, definitions are being added for the following terms: 
continuous passage, public right-of-way, public sidewalk, public 
sidewalk curb ramp, principal public entrance, site infeasibility, and 
technically infeasible; and the term text telephone is being replaced 
with the term TTY. Finally, the definition of ``transient lodging'' is 
revised to include residential facilities rather than facilities that 
contain one or more dwelling units.
    The general exception in Sec. 4.1.1(5)(b)(i) is expanded to include 
all raised areas used primarily for purposes of security or life or 
fire safety; several more examples are added to the non-occupiable 
spaces listed in Sec. 4.1.1(5)(b)(ii); and Sec. 4.1.1(5)(b)(iii) is 
added to exempt single-occupant structures accessed only by passageways 
below grade or elevated above grade, such as certain toll booths.
    Exception 1 to Sec. 4.1.3(5) is expanded to exempt the upper level 
of drawbridge towers, boat traffic towers, lock and dam control 
stations, train dispatching towers, and similar structures less than 
three stories and not open to the general public if the upper level 
houses no more than five persons and is less than 500 square feet.
    Exception 4 to Sec. 4.1.3(5) is expanded to allow platform lifts to 
provide access to raised judges' benches, clerks' stations, speakers' 
rostrums, raised daises, jury boxes, and witness stands, and to connect 
levels within an individual dwelling unit.
    Exception 5 is added to Sec. 4.1.3(5) to exempt the cab level and, 
in some instances, the penultimate floor of air traffic control towers.
    Language is added to Sec. 4.1.3(8)(a)(i) to require that, in 
facilities subject to title II, all planned principal public entrances 
shall be included within the 50% of public entrances required to be 
accessible.
    Section 4.1.3(17)(c)(ii) is expanded to require that, in stadiums, 
arenas, and convention centers subject to title II, at least one public 
TTY shall be provided on each floor level having a public pay 
telephone.
    Sections 4.1.3(17)(c) (iv) and (v) are added to require that if an 
interior public pay telephone is provided in a public use area of a 
facility covered by title II, at least one interior public TTY shall be 
provided in at least one public use area, and if an interior public pay 
telephone is provided in the secured area of a detention or 
correctional facility subject to section 12, then at least one public 
TTY shall also be provided in at least one secured area.
    An exception is added to Sec. 4.1.3(17)(d) to exempt the secured 
areas of detention or correctional facilities where shelves and outlets 
are prohibited for purposes of security or safety.
    Section 4.1.3(22) is added to require that permanently-installed 
swimming pools subject to title II shall be designed so as to provide 
at least one means of access into the water, if such swimming pools are 
intended for recreational purposes and not intended solely for diving 
or wading.
    The previously-reserved exception to Sec. 4.1.7(1)(a) is added to 
allow alternative methods of access if it is determined that it is not 
feasible to provide physical access to a qualified historic building or 
facility in a manner that will not threaten or destroy the historic 
significance of the building or facility.
    Section 7.2(3) is added to cover title II facilities, and requires 
that, where counters have cash registers and are provided for the sale 
or distribution of goods or services to the public, at least one of 
each type shall comply with 7.2(1); at counters that may not have cash 
registers but at which goods or services are sold or distributed, a 
portion of the main counter shall be accessible or an accessible 
auxiliary counter shall be provided in close proximity; and at counter 
or teller windows with solid partitions or security glazing separating 
personnel from the public, at least one of each type shall provide a 
method to facilitate voice communication that is accessible to both 
individuals who use wheelchairs and individuals who have difficulty 
bending or stooping.
    Section 10.4.1(8), which was previously reserved, is added to 
require that, in airports covered by title II, at least one accessible 
route shall be provided through fixed security barriers, and where 
security barriers incorporate equipment, such as metal detectors, which 
cannot be made accessible, an accessible route shall be provided 
adjacent to such security screening devices. An exception is also added 
to this section to exempt doors, doorways, and gates designed to be 
operated only by security personnel from the requirements of 4.13.6, 
4.13.9, 4.13.11, and 4.13.12.
    Finally, appendix notes are added for the following sections: 3.5 
(definition of transient lodging); 4.1.3(8)(a)(i) (public entrances); 
4.1.3(8)(b) (path of travel to building entrances); 7.2(3)(iii) 
(counter or teller windows with partitions); and 10.4.1(8) (security 
systems in transportation facilities).

Regulatory Process Matters

    This notice of proposed rulemaking has been reviewed by the Office 
of Management and Budget under Executive Order 12866. The Access Board 
has analyzed the impact of applying its proposed amendments to ADAAG to 
entities covered by titles II and III of the ADA and has determined 
that they are a significant regulatory action for purposes of Executive 
Order 12866. The Access Board has prepared a Regulatory Assessment, 
which includes a cost impact analysis for certain accessibility 
elements and a discussion of the regulatory alternatives considered. 
Adoption of the revised ADA Standards as the standards for title II is, 
therefore, also a significant regulatory action to which the Access 
Board's Regulatory Assessment would apply. Comments submitted to the 
Access Board on its Regulatory Assessment will also be considered by 
the Department as comments on this proposed rule.
    The Access Board has determined that this proposed rule will have a 
significant economic impact on a substantial number of small entities 
and, therefore, has included the flexibility analysis required by the 
Regulatory Flexibility Act in its Regulatory Assessment. The Access 
Board has made every effort to lessen the economic impacts of its 
proposed rule on small entities, but recognizes that such impacts are 
the necessary result of the mandate of the ADA itself. The Access 
Board's analysis also applies to the Department's proposed adoption of 
the revised ADAAG. The Department's proposed procedural amendments will 
not have a significant economic impact on small entities.
    The Access Board has made every effort to lessen the impact of its 
proposed guidelines on state and local governments, but recognizes that 
the guidelines will have some federalism impacts. These impacts are 
discussed in the Access Board's Regulatory Assessment, which also 
applies to the Department's proposed rule.
    Executive Order 12875 prohibits executive departments and agencies 
from promulgating any regulation that is not required by statute and 
that creates a mandate upon a state, local, or tribal government unless 
certain conditions are met. The Access Board is required by statute to 
issue minimum guidelines for the purposes of implementing titles II and 
III of the ADA (42 USC 12204). The Department of Justice is required by 
statute to promulgate regulations that implement title II of the ADA 
and that are consistent with the minimum guidelines and requirements 
issued by the Access Board (42 USC 12134). Because the Department of 
Justice is required by statute to promulgate regulations that do not go 
below the Access Board's minimum guidelines, and because this rule 
adopts guidelines issued by the Access Board as also required by 
statute, this rule is required by statute. Therefore, the special 
conditions in Executive Order 12875 need not be met. However, the 
Department will provide any comments submitted that suggest ways to 
make compliance less burdensome or that would improve the effectiveness 
of the title II regulation in achieving its objective.

List of Subjects

28 CFR Part 35

    Administrative practice and procedure, Alcoholism, Blind, Buildings 
and facilities, Civil rights, Drug abuse, Historic preservation, HIV/
AIDS, Individuals with disabilities, Intergovernmental relations, 
Reporting and recordkeeping requirements, State and local governments.

28 CFR Part 36

    Administrative practice and procedure, Alcoholism, Blind, Buildings 
and facilities, Business and industry, Civil rights, Consumer 
protection, Drug abuse, Historic preservation, HIV/AIDS, Individuals 
with disabilities, Reporting and recordkeeping requirements, 
Transportation.

28 CFR Part 37

    Buildings and facilities, Civil rights, Individuals with 
disabilities, Historic preservation, Transportation.

    By the authority vested in me as Attorney General by 28 U.S.C. 509, 
510, 5 U.S.C. 301, and sections 204 and 306 of the Americans with 
Disabilities Act, Pub. L. 101-336, 42 U.S.C. 12134 and 12186, and for 
the reasons set forth in the preamble, Chapter I of Title 28 of the 
Code of Federal Regulations is proposed to be amended as follows:

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

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

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

    2. In Sec. 35.150, paragraph (a)(2) and the third sentence of 
paragraph (b)(1) are revised to read as follows:


Sec. 35.150  Existing facilities.

    (a) * * *
* * * * *
    (2) Require a public entity to take any action that would threaten 
or destroy the historic significance of an historic property, as 
determined under the procedures set out in section 4.1.7 of appendix A 
to part 37 of this chapter; or
* * * * *
    (b) * * *
    (1) * * * A public entity, in making alterations to existing 
buildings, shall meet the accessibility requirements of Sec. 35.151. 
The path of travel requirements of Sec. 35.153 shall not apply to 
measures taken solely to comply with the program accessibility 
requirements of this section. * * *
* * * * *
    3. Section 35.151 is revised and Secs. 35.152 through 35.155 are 
added to read as follows:


Sec. 35.151  New construction.

    (a) Design and construction. Each facility or part of a facility 
constructed by, on behalf of, or for the use of a public entity shall 
be designed and constructed in such manner that the facility or part of 
the facility is readily accessible to and usable by individuals with 
disabilities, if the construction was commenced after January 26, 1992.
    (b) Exception for structural impracticability. (1) Full compliance 
with the requirements of this section is not required where a public 
entity can demonstrate that it is structurally impracticable to meet 
the requirements. Full compliance will be considered structurally 
impracticable only in those rare circumstances when the unique 
characteristics of terrain prevent the incorporation of accessibility 
features.
    (2) If full compliance with this section would be structurally 
impracticable, compliance with this section is required to the extent 
that it is not structurally impracticable. In that case, any portion of 
the facility that can be made accessible shall be made accessible to 
the extent that it is not structurally impracticable.
    (3) If providing accessibility in conformance with this section to 
individuals with certain disabilities (e.g., those who use wheelchairs) 
would be structurally impracticable, accessibility shall nonetheless be 
ensured to persons with other types of disabilities (e.g., those who 
use crutches or who have sight, hearing, or mental impairments) in 
accordance with this section.


Sec. 35.152  Alterations: General.

    (a) General. (1) Each facility or part of a facility altered by, on 
behalf of, or for the use of a public entity in a manner that affects 
or could affect the usability of the facility or part of the facility 
shall, to the maximum extent feasible, be altered in such manner that 
the altered portion of the facility is readily accessible to and usable 
by individuals with disabilities, if the alteration was commenced after 
January 26, 1992.
    (2) An alteration is deemed to have commenced after January 26, 
1992, if the physical alteration of the property begins after that 
date.
    (b) Alteration. For the purposes of this part, an alteration is a 
change to a facility that affects or could affect the usability of the 
building or facility or any part thereof.
    (1) Alterations include, but are not limited to, remodeling, 
renovation, rehabilitation, reconstruction, historic restoration, 
resurfacing, changes or rearrangement in structural parts or elements, 
and changes or rearrangement in the plan configuration of walls and 
full-height partitions. Normal maintenance, reroofing, painting or 
wallpapering, asbestos removal, or changes to mechanical and electrical 
systems are not alterations unless they affect the usability of the 
building or facility.
    (2) If existing elements, spaces, or common areas are altered, then 
each such altered element, space, or area shall comply with the 
applicable provisions of appendix A to part 37 of this chapter.
    (c) To the maximum extent feasible. The phrase ``to the maximum 
extent feasible,'' as used in this section, applies to the occasional 
case where the nature of an existing facility makes it virtually 
impossible to comply fully with applicable accessibility standards 
through a planned alteration. In these circumstances, the alteration 
shall provide the maximum physical accessibility feasible. Any altered 
features of the facility that can be made accessible shall be made 
accessible. If providing accessibility in conformance with this section 
to individuals with certain disabilities (e.g., those who use 
wheelchairs) would not be feasible, the facility shall be made 
accessible to persons with other types of disabilities (e.g., those who 
use crutches, those who have impaired vision or hearing, or those who 
have other impairments).


Sec. 35.153  Alterations: Path of travel.

    (a) General. An alteration that affects or could affect the 
usability of or access to an area of a facility that contains a primary 
function shall be made so as to ensure that, to the maximum extent 
feasible, the path of travel to the altered area and the restrooms, 
telephones, and drinking fountains serving the altered area, are 
readily accessible to and usable by individuals with disabilities, 
including individuals who use wheelchairs, unless the cost and scope of 
such alterations is disproportionate to the cost of the overall 
alteration.
    (b) Primary function. A ``primary function'' is a major activity 
for which the facility is intended. Areas that contain a primary 
function include, but are not limited to, the meeting rooms in a 
conference center, as well as offices and other work areas in which the 
activities of the public entity using the facility are carried out.
    (1) Mechanical rooms, boiler rooms, supply storage rooms, employee 
lounges or locker rooms, janitorial closets, entrances, and corridors 
are not areas containing a primary function. Restrooms are not areas 
containing a primary function, unless the provision of restrooms is the 
principal purpose of the area, e.g., in highway rest stops.
    (2) For the purposes of this section, alterations to windows, 
hardware, controls, electrical outlets, and signage shall not be deemed 
to be alterations that affect the usability of or access to an area 
containing a primary function.
    (c) Path of travel. (1) A ``path of travel'' includes a continuous, 
unobstructed way of pedestrian passage by means of which the altered 
area may be approached, entered, and exited, and which connects the 
altered area with an exterior approach (including sidewalks, streets, 
and parking areas), an entrance to the facility, and other parts of the 
facility.
    (2) An accessible path of travel may consist of walks and 
sidewalks, curb ramps and other interior or exterior pedestrian ramps; 
clear floor paths through lobbies, corridors, rooms, and other improved 
areas; parking access aisles; elevators and lifts; or a combination of 
these elements.
    (3) For the purposes of this part, the term ``path of travel'' also 
includes the restrooms, telephones, and drinking fountains serving the 
altered area.
    (d) Disproportionality. (1) Alterations made to provide an 
accessible path of travel to the altered area will be deemed 
disproportionate to the overall alteration when the cost exceeds 20% of 
the cost of the alteration to the primary function area.
    (2) Costs that may be counted as expenditures required to provide 
an accessible path of travel may include:
    (i) Costs associated with providing an accessible entrance and an 
accessible route to the altered area, for example, the cost of widening 
doorways or installing ramps;
    (ii) Costs associated with making restrooms accessible, such as 
installing grab bars, enlarging toilet stalls, insulating pipes, or 
installing accessible faucet controls;
    (iii) Costs associated with providing accessible telephones, such 
as relocating the telephone to an accessible height, installing 
amplification devices, or installing a telecommunications device for 
deaf persons (TDD);
    (iv) Costs associated with relocating an inaccessible drinking 
fountain.
    (e) Duty to provide accessible features in the event of 
disproportionality. (1) When the cost of alterations necessary to make 
the path of travel to the altered area fully accessible is 
disproportionate to the cost of the overall alteration, the path of 
travel shall be made accessible to the extent that it can be made 
accessible without incurring disproportionate costs.
    (2) In choosing which accessible elements to provide, priority 
should be given to those elements that will provide the greatest 
access, in the following order:
    (i) An accessible entrance;
    (ii) An accessible route to the altered area;
    (iii) At least one accessible restroom for each sex or a single 
unisex restroom;
    (iv) Accessible telephones;
    (v) Accessible drinking fountains; and
    (vi) When possible, additional accessible elements such as parking, 
storage, and alarms.
    (f) Series of smaller alterations. (1) The obligation to provide an 
accessible path of travel may not be evaded by performing a series of 
small alterations to the area served by a single path of travel if 
those alterations could have been performed as a single undertaking.
    (2) (i) If an area containing a primary function has been altered 
without providing an accessible path of travel to that area, and 
subsequent alterations of that area, or a different area on the same 
path of travel, are undertaken within three years of the original 
alteration, the total cost of alterations to the primary function areas 
on that path of travel during the preceding three-year period shall be 
considered in determining whether the cost of making that path of 
travel accessible is disproportionate.
    (ii) Only alterations undertaken after the effective date of this 
amendment shall be considered in determining if the cost of providing 
an accessible path of travel is disproportionate to the overall cost of 
the alterations.


Sec. 35.154  Alterations: Historic preservation.

    (a) Alterations to buildings or facilities that are ``historic 
properties'' as defined in Sec. 35.104 shall comply, to the maximum 
extent feasible, with section 4.1.7 of appendix A to part 37 of this 
chapter.
    (b) If it is determined under the procedures set out in section 
4.1.7 of appendix A to part 37 of this chapter that it is not feasible 
to provide physical access to an historic property in a manner that 
will not threaten or destroy the historic significance of the building 
or facility, alternative methods of access shall be provided pursuant 
to the requirements of Sec. 35.150.


Sec. 35.155  Standards for new construction and alterations.

    Effective on [the effective date of the final rules] new 
construction and alterations subject to this part shall comply with the 
standards for accessible design in 28 CFR part 37, appendix A.
    4. Section 35.172 is revised to read as follows:


Sec. 35.172  Investigations and compliance reviews.

    (a) The designated agency shall investigate each complete complaint 
for which it is responsible under Sec. 35.171.
    (b) The designated agency may conduct compliance reviews of public 
entities based on information indicating a possible failure to comply 
with the nondiscrimination requirements of this part.
    (c) Where appropriate, the designated agency shall attempt informal 
resolution of any matter being investigated under this section, and, if 
resolution is not achieved, issue to the public entity and the 
complainant, if any, a Letter of Findings that shall include--
    (1) Findings of fact and conclusions of law;
    (2) A description of a remedy for each violation found; and
    (3) Notice of the rights and procedures available under paragraph 
(d) of this section and Secs. 35.173 and 35.174.
    (d) At any time, the complainant may file a private suit pursuant 
to section 203 of the Act, whether or not the designated agency finds a 
violation.
    (e) A public entity shall permit access by the designated agency 
during normal business hours to books, records, accounts, and other 
sources of information, and its facilities as may be pertinent to 
ascertain compliance with this part. Whenever any information required 
of a public entity is in the exclusive possession of any other agency, 
institution, or person and that agency, institution, or person fails or 
refuses to furnish that information, the public entity shall so certify 
in its report and shall set forth the efforts that it has made to 
obtain the information. Asserted considerations of privacy or 
confidentiality may not operate to bar the designated agency from 
evaluating or seeking to enforce compliance with this part. Information 
of a confidential nature obtained in connection with compliance 
evaluation or enforcement shall not be disclosed except where necessary 
in formal enforcement proceedings or where otherwise required by law.
    5. Section 35.174 is revised to read as follows:


Sec. 35.174  Enforcement.

    (a) If a public entity declines to enter into voluntary compliance 
negotiations or if negotiations are unsuccessful, the designated agency 
shall refer the matter to the Attorney General with a recommendation 
for appropriate action.
    (b) If there appears to be a threatened failure to comply with this 
part and if the threatened noncompliance cannot be corrected by 
informal means, the designated agency may use any means authorized by 
law to achieve compliance, including, but not limited to, referral to 
the Department of Justice with a recommendation for appropriate action.

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC 
ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

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

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

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


Sec. 36.402  Alterations.

* * * * *
    (b) * * *
    (2) If existing elements, spaces, or common areas are altered, then 
each such altered element, space, or area shall comply with the 
applicable provisions of appendix A to part 37 of this chapter.
* * * * *
    8. Section 36.405 is revised to read as follows:


Sec. 36.405  Alterations: Historic preservation.

    (a) Alterations to buildings or facilities that are eligible for 
listing in the National Register of Historic Places under the National 
Historic Preservation Act (16 U.S.C. 470 et seq.), or are designated as 
historic under State or local law, shall comply to the maximum extent 
feasible with section 4.1.7 of appendix A to part 37 of this chapter.
    (b) If it is determined under the procedures set out in section 
4.1.7 of appendix A to part 37 of this chapter that it is not feasible 
to provide physical access to an historic property that is a place of 
public accommodation in a manner that will not threaten or destroy the 
historic significance of the building or facility, alternative methods 
of access shall be provided pursuant to the requirements of subpart C 
of this part.
    9. Paragraphs (a) and (b) of Sec. 36.406 are revised to read as 
follows:


Sec. 36.406  Standards for new construction and alterations.

    (a) New construction and alterations subject to this part shall 
comply with the standards for accessible designs published as appendix 
A to part 37 of this chapter.
    (b) The chart in the appendix to this section provides guidance to 
the user in reading appendix A to part 37 of this chapter together with 
subparts A through D of this part, when determining requirements for a 
particular facility.
* * * * *
    10. In the Appendix to Sec. 36.406, in the heading in the third 
column of the table, ``ADAAG'' is revised to read ``ADA Standards''.

Appendix A to Part 36 [Removed]

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

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

PART 37--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES AND BY PUBLIC ACCOMMODATIONS AND IN 
COMMERCIAL FACILITIES

    12. Part 37 is added to read as follows:
Sec.
37.101  Accessibility Standards.
37.102-37.999  [Reserved]

Appendix A to Part 37--Standards for Accessible Design

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134, 
12186.


Sec. 37.101  Accessibility Standards.

    The standards for accessible design for purposes of the Americans 
with Disabilities Act are set forth in Appendix A of this part.


Secs. 37.102-37.999  [Reserved]

Appendix A to Part 37--Standards for Accessible Design

    [Note: the text of the Appendix, including the changes set out 
in the Access Board's interim rule published elsewhere in this issue 
of the Federal Register, is available from John Wodatch, Public 
Access Section, Civil Rights Division, U.S. Department of Justice, 
P.O. Box 66738, Washington, D.C. 20035-9998. Telephone (202) 307-
2227 (Voice) or (202) 514-0383 (TTY) (the Division's ADA Information 
Line). These are not toll free numbers.]

    Dated: June 5, 1994.
Janet Reno,
Attorney General.
[FR Doc. 94-14228 Filed 6-17-94; 8:45 am]
BILLING CODE 4410-01-P