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Mandating reasonableness in a reasonable inquiry

Through this rule, the Department is adopting revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the 1991 ADAAG since 1998.

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36.302 Modifications in policies, practices, or procedures. The provisions of this rule and 49 CFR part 39 are intended to be substantively consistent with one another. In support of this effort, the Department is amending its regulation implementing title III and adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines. Title III, which this rule addresses, prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards. The Access Board’s publication of the 2004 ADA/ABA Guidelines was the culmination of a long-term effort to facilitate ADA compliance by eliminating, to the extent possible, inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. (Redesignated from section 36.608) 2010 Guidance and Section-by-Section Analysis 1991 Preamble and Section-by-Section Analysis Pool Extension Final Rule Guidance and Section-by Section Analysis ADA Amendments Act Final Rule Guidance and Section-by-Section Analysis Movie Captioning and Audio Description Final Rule Guidance and Section-by-Section Analysis DEPARTMENT OF JUSTICE 28 CFR Part 36 [CRT Docket No. 3181– 2010] RIN 1190–AA44 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities AGENCY: Department of Justice, Civil Rights Division. SUMMARY: This final rule revises the Department of Justice (Department) regulation that implements title III of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. 4151 The passage of the ADA expanded the Access Board’s responsibilities. How and to what extent the Access Board’s guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department. Section 306(a) of the ADA directs the Secretary of Transportation to issue regulations for demand responsive or fixed route systems operated by private entities not primarily engaged in the business of transporting people (sections 302(b)(2)(B) and (C)) and for private entities that are primarily engaged in the business of transporting people (section 304). ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provide scoping requirements for facilities subject to the ADA; ‘‘scoping’’ is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces—and, in some cases, how many—must comply with the technical specifications. The ADA requires the Department to issue regulations that include enforceable accessibility standards applicable to facilities subject to title II or title III that are consistent with the ‘‘minimum guidelines’’ issued by the Access Board, 42 U. The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III. As a Federal member of the Access Board, the Attorney General’s representative voted to approve the revised guidelines. Many other commenters addressed areas of desired regulation or of particular concern.

The ANPRM dealt with the Department’s responsibilities under both title II and title III. The Department extended the comment deadline by four months at the public’s request. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department’s application of the 2004 ADAAG once adopted by the Department and the Department’s regulatory assessment of the costs and benefits of particular elements.

Under the Department’s 1991 title III regulation, places of public accommodation and commercial facilities currently are required to comply with the 1991 Standards with respect to newly constructed or altered facilities.

Appendix A of the 1991 title III regulation, which is republished as Appendix D to 28 CFR part 36, contains the ADA Standards for Accessible Design (1991 Standards), which were based upon the version of the Americans with Disabilities Act Accessibility Guidelines (1991 ADAAG) published by the Access Board on the same date.

SUPPLEMENTARY INFORMATION: The Roles of the Access Board and the Department of Justice The Access Board was established by section 502 of the Rehabilitation Act of 1973. For the purposes of this final rule, the Department will refer to ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as the 2004 ADAAG.

You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above. The ADA also requires newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. This revised format is designed to eliminate unintended conflicts between the two sets of Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes.

On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III).