Set forth below are extracts from Advanced Notice of Rule Making, (ANPRM”), published by the Department of Justice, (“DOJ”), regarding Accessibility Guidelines for Recreation Facilities and pertaining to golf courses and the use of golf cars and golf car passages.

DOJ has adopted the ADA Accessibility Guidelines, (“ADAAG”), as the Standard for Accessible Design for Title II of the Americans with Disabilities Act, (“ADA”), (applies to State and local government entities) of the ADA. but not yet for Title III of the ADA (applies to the activities of places of public accommodation, e.g., pubic access and semi-private golf clubs and resorts). This final rule amends ADAAG by adding a new special application section for among other recreational facilities, golf courses, miniature golf, sports facilities, and swimming pools and spas. ADAAG is currently under review by the Department of Justice.

DEPARTMENT OF JUSTICE
Civil Rights Division
28 CFR Parts 35 and 36
CRT Docket No. 2004-DRS01; AG Order No. 2736-2004
RIN 1190-AA46 and 1190-AA44
Nondiscrimination on the Basis of Disability in State and Local Government Services;
Nondiscrimination on the Basis of Disability by Public Accommodatons and in Commercial Facilities

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Advance Notice of Proposed Rulemaking.

SUMMARY: The Department of Justice (Department) is issuing this Advance Notice of Proposed Rulemaking (ANPRM) in order to begin the process of adopting Parts I and III of the revised guidelines implementing the Americans with Disabilities Act of 1990 (ADA) and the Architectural Barriers Act of 1968 (ABA) 1, published by the Architectural and Transportation Barriers Compliance Board (Access Board) on July 23, 2004, at 69 FR 44083. 2The ADA requires the Department to adopt enforceable accessibility standards that are “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board” (42 U.S.C. 12186). The Department adopts and enforces standards consistent with the Access Board’s guidelines under the Department’s regulations implementing Title II (Subtitle A) and Title III of the ADA as the ADA Standards for Accessible Design (ADA Standards). Prior to their adoption by the Department, the revised Access Board guidelines are effective only as guidance to the Department; they have no legal effect on the public until the Department issues a final rule adopting revised ADA Standards. In this ANPRM, the current, legally enforceable ADA Standards will be referred to as the “current ADA Standards,” while the revisions that will be proposed in the NPRM, based on Parts I and III of the revised ADA and ABA Accessibility Guidelines, will be referred to as the “revised ADA Standards.” The Access Board’s revised ADA Accessibility Guidelines will be cited as “ADAAG.”

The purpose of this ANPRM is twofold: to solicit public input on various issues relating to the potential application of the revisions to the ADA Standards and to obtain background information for the regulatory assessment that the Department must prepare in the process of adopting the revisions to the ADA Standards.


Purpose

The Access Board’s publication of revised accessibility guidelines is the culmination of a long-term effort to facilitate ADA compliance and enforcement by eliminating inconsistencies among Federal accessibility requirements and between Federal accessibility requirements and State and local building codes. In support of this effort, the Department is announcing its intention to adopt, in a separate Notice of Proposed Rulemaking (NPRM) to follow this ANPRM, standards consistent with Parts I and III of the Access Board’s revised guidelines as the ADA Standards for Accessible Design.

The ADA and Department of Justice Regulations

The ADA broadly protects the rights of individuals with disabilities in employment, access to State and local government services, places of public accommodation, transportation, and other important areas of American life and, in addition, requires that newly designed and constructed or altered public accommodations and commercial facilities be readily accessible to and usable by individuals with disabilities. Under the ADA, the Department is responsible for issuing regulations to implement Title II and Title III of the Act, except to the extent that transportation providers subject to Title II or Title III are regulated by the Department of Transportation.

Title II applies to State and local government entities, and, in Subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. Title II extends the prohibition of discrimination established by section 504 of the Rehabilitation Act of 1973, as amended (Rehabilitation Act) (29 U.S.C. 794) (hereinafter, Section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance (42 U.S.C. 12131 et seq). Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as. . . recreation facilities and requires newly constructed or altered places of public accommodation . . . to comply with the ADA Standards (42 U.S.C. 12182 et seq).

On July 26, 1991, the Department issued its final rules implementing Title II and Title III, which are codified at 28 CFR part 35 (Title II) and part 36 (Title III). Appendix A of the Title III regulation, at 28 CFR part 36, contains the current ADA Standards, which were based upon the ADAAG published by the Access Board on the same date. Under the Department’s regulation implementing Title III, places of public accommodation and commercial facilities are required to comply with the current ADA Standards with respect to newly constructed or altered facilities. By contrast, under the regulation implementing Title II, State and local government entities are currently permitted to choose to apply either the requirements contained in the Uniform Federal Accessibility Standards (UFAS) or those contained in the ADA Standards with respect to their newly constructed or altered facilities. For greater uniformity, when the Department proposes to adopt the revised ADA Standards, the Department will also propose to withdraw the option of using UFAS under Title II.

The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the Rehabilitation Act, 29 U.S.C. 792. The Board consists of thirteen public members appointed by the President, of whom a majority must be individuals with disabilities, and twelve Federal agencies designated by law, including the Department of Justice and the Department of Transportation. The ADA requires the Access Board to “issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter . . . to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities” (42 U.S.C. 12204). The ADA requires the Department of Justice 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.S.C. 12134, 12186).

The Department of Justice was extensively involved in the development of ADAAG. As a Federal member of the Access Board, the Department voted to approve the revised guidelines. Although the enforceable standards issued by the Department under Title II and Title III must be consistent with the minimum guidelines published by the Access Board, it is the responsibility solely of the Department of Justice to promulgate standards and to interpret and enforce those standards.

The ADA also requires the Department to develop regulations with respect to existing facilities subject to Title II (Subtitle A) and Title III. How and to what extent the Access Board's guidelines are used with respect to the readily achievable barrier removal requirement applicable to existing facilities under Title III of the ADA and with respect to the provision of program accessibility under Title II of the ADA is solely within the discretion of the Department of Justice.

The Revised Guidelines

The revised ADA and ABA Accessibility Guidelines are the product of ten years of effort to modify and update the current guidelines, reflecting compromise and the cooperative efforts of a host of private and public entities. Part I provides scoping requirements for facilities subject to the ADA; scoping is a term used in the revised guidelines to describe requirements (set out in Parts I and II) that prescribe what elements and spaces and, in some cases, how many, must comply with the technical specifications set out in Part III. Part II provides scoping requirements for facilities subject to the ABA, and Part III provides uniform technical specifications for facilities subject to either statute. This revised format is intended to eliminate unintended conflicts between the two Federal accessibility standards and to minimize conflicts between the Federal regulations and the model codes that form the basis of many State and local building codes.

Since 1998, the Access Board has amended ADAAG four times, adding specific guidelines in the following areas: State and local government facilities (63 FR 2000, Jan. 13, 1998); building elements designed for use by children (63 FR 2060, Jan. 13, 1998); play areas (65 FR 62497, Oct. 18, 2000); and recreation facilities (67 FR 56352, Sept. 3, 2002). These amendments to ADAAG have not previously been adopted by the Department as ADA Standards.

The revisions to ADAAG that were published by the Access Board on July 23, 2004, represented the culmination of a lengthy review process. In 1994, the Access Board began the process of updating the original ADAAG by establishing an advisory committee comprised of members of the design and construction industry, the building code community, State and local government entities, and people with disabilities. In 1999, based largely on the report and recommendations of this advisory committee, 3 the Access Board issued a proposed rule to jointly update and revise its ADA and ABA accessibility guidelines, 64 FR 62248-01. In response to its rule, the Access Board received more than 2,500 comments from individuals with disabilities, affected industries, State and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings throughout the nation. From the beginning, the Access Board also worked vigorously to harmonize the ADA and ABA Accessibility Guidelines with industry standards and model codes which form the basis for many state and local building codes. The Access Board released an interim draft of its guidelines to the public in April 2002, 67 FR 15509, in order to provide an opportunity for model codes to consider amendments that would promote further harmonization. By the date of its final publication on July 23, 2004, 69 FR 44083, the revised ADA Accessibility Guidelines had been the subject of extraordinary public participation and review. Through this ANPRM, the Department is announcing its intention to publish a proposed rule that will adopt revised ADA Standards consistent with all of the amendments to ADAAG since 1998.

Current Approach. Title III of the ADA and the implementing regulations provide that covered entities must design and construct facilities “for first occupancy” after the effective date in accordance with the current ADA Standards (28 CFR 36.401). Thus, for purposes of Title III, the triggering event for newly constructed facilities, which is dictated by statute, is first occupancy. The Title III regulation defines “first occupancy” in relation to the completion of the application for a building permit (which had to have been completed less than twelve months before the effective date) and the issuance of a certificate of occupancy (which had to have been completed after the effective date). With respect to altered facilities under Title III, the triggering event is the date “physical alteration begins” (28 CFR 36.402(a)(2)). The implementing regulation for Title II provides that the triggering event for both new construction and alterations is the commencement of construction (28 CFR 35.151).

Possible Additional Approach. To the extent applicable, the Department intends to continue to use the same triggering event for each category described above; that is, for new construction under Title III, first occupancy 5; for alterations under Title III, when physical alteration begins; and under Title II, for both new construction and alterations, the commencement of construction. The Department is concerned, however, that while these triggering events are appropriate for most building situations, they may not necessarily be appropriate for all of them – particularly if there are Title III facilities that do not require building permits or that do not receive certificates of occupancy. The Department is concerned that, as applied to these different types of facilities, the triggering events established under the Title II and Title III regulations may be difficult to apply. Therefore, the Department is considering “first use” as an alternative trigger for such facilities.

Revised ADA Standards: Existing Facilities

As noted above, the Department anticipates proposing revised ADA Standards for new construction and alterations that are consistent with ADAAG. In making this proposal, one of the most important issues that the Department must address is the effect that new or changed ADA Standards will have on the continuing obligation of public accommodations to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so. This issue has not been addressed in ADAAG because it is outside of the scope of the Access Board’s authority under the ADA. Responsibility for implementing Title III’s requirement that public accommodations eliminate existing architectural barriers where it is readily achievable to do so rests solely with the Department of Justice.

The Department’s current regulation implementing Title III of the ADA, 28 CFR 36.304, establishes the requirements for readily achievable barrier removal by public accommodations. Under this regulation, the Department uses the ADA Standards as a guide to identify what constitutes an architectural barrier. Once adopted, the revised ADA Standards will present a new reference point for Title III’s requirement to remove the architectural barriers in existing places of public accommodation. The Department is concerned that the incremental changes in ADAAG may place significant cost burdens on businesses that have already complied with the ADA Standards in their existing facilities. The Department therefore seeks to strike an appropriate balance to ensure that people with disabilities are able to achieve access to buildings and facilities without imposing unnecessary financial burdens on existing places of public accommodation with respect to their continuing obligations under the readily achievable barrier removal requirement.

The Department is considering several ways in which to reduce such financial burdens. One approach is to establish a safe harbor under which the Department would deem compliance with scoping and technical requirements in the current ADA Standards by elements in existing facilities to constitute compliance with the ADA for purposes of meeting barrier removal obligations. Another possible approach is to reduce the scoping requirements for some of the new or changed requirements as they are applied to existing facilities. Yet another potential approach is to determine that certain new or revised technical requirements are inappropriate for barrier removal and thus would not be required in satisfaction of a barrier removal obligation. These approaches can be used alone or in combination.

II. Specific Issues

. . .

Recreation Facilities: Golf Courses

ADAAG now establishes comprehensive requirements for the design and construction of accessible golf courses. In addition to establishing scoping and technical requirements for individual elements in or serving the golf course, section 206.2.15 provides that –

At least one accessible route shall connect accessible elements and spaces within the boundary of the golf course. In addition, accessible routes serving golf car rental areas; bag drop areas; course weather shelters complying with 238.2.3; course toilet rooms; and practice putting greens, practice teeing grounds, and teeing stations at driving ranges complying with 238.3 shall comply with Chapter 4 except as modified by 1006.2.EXCEPTION: Golf car passages complying with 1006.3 shall be permitted to be used for all or part of accessible routes required by 206.2.15.