28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) (published 2008)
Part 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND LOCAL GOVERNMENT SERVICES
ETA Editor's Note
Click here for the Preamble to 28 CFR Part 35 Title II NPRM.
1. The authority citation for 28 CFR part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
2-3. Amend § 35.104 by adding the following definitions of 1991 Standards, 2004 ADAAG, direct threat, existing facility, other power-driven mobility device, proposed standards, service animal, qualified reader, video interpreting services (VIS), and wheelchair in alphabetical order and revising the definitions of auxiliary aids and services and qualified interpreter to read as follows:
§ 35.104 Definitions.
1991 Standards means the ADA Standards for Accessible Design, codified at 28 CFR part 36, App. A;
2004 ADAAG means the requirements set forth in appendices B and D to 36 CFR part 1191.
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Auxiliary aids and services includes -
(1) Qualified interpreters, notetakers, computer-aided transcription services, written materials, exchange of written notes, telephone handset amplifiers, assistive listening devices, assistive listening systems, telephones compatible with hearing aids, closed caption decoders, open and closed captioning, text telephones (TTYs), videotext displays, video interpreting services (VIS), accessible electronic and information technology, or other effective methods of making orally delivered information available to individuals who are deaf or hard of hearing;
(2) Qualified readers, taped texts, audio recordings, brailled materials and displays, screen reader software, magnification software, optical readers, secondary auditory programs (SAP), large print materials, accessible electronic and information technology, or other effective methods of making visually delivered materials available to individuals who are blind or have low vision;
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Direct threat means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.
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Existing facility means a facility that has been constructed and remains in existence on any given date.
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Other power-driven mobility device means any of a large range of devices powered by batteries, fuel, or other engines--whether or not designed solely for use by individuals with mobility impairments--that are used by individuals with mobility impairments for the purpose of locomotion, including golf cars, bicycles, electronic personal assistance mobility devices (EPAMDs), or any mobility aid designed to operate in areas without defined pedestrian routes.
Proposed standards means the requirements set forth in appendices B and D to 36 CFR part 1191 as adopted by the Department of Justice.
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Qualified interpreter means an interpreter who is able to interpret effectively, accurately, and impartially using any necessary specialized vocabulary. Qualified interpreters include, for example, sign language interpreters, oral interpreters, and cued speech interpreters. Oral interpreter means an interpreter who has special skill and training to mouth a speaker's words silently for individuals who are deaf or hard of hearing. Cued speech interpreter means an interpreter who functions in the same manner as an oral interpreter except that he or she also uses a hand code, or cue, to represent each speech sound.
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Qualified reader means a person who is able to read effectively, accurately, and impartially using any necessary vocabulary.
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Service animal means any dog or other common domestic animal individually trained to do work or perform tasks for the benefit of a qualified individual with a disability, including, but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to the presence of people or sounds, providing minimal protection or rescue work, pulling a wheelchair, fetching items, assisting an individual during a seizure, retrieving medicine or the telephone, providing physical support and assistance with balance and stability to individuals with mobility disabilities, and assisting individuals, including those with cognitive disabilities, with navigation. The term service animal includes individually trained animals that do work or perform tasks for the benefit of individuals with disabilities, including psychiatric, cognitive, and mental disabilities. The term service animal does not include wild animals (including nonhuman primates born in captivity), reptiles, rabbits, farm animals (including any breed of horse, miniature horse, pony, pig, or goat), ferrets, amphibians, and rodents. Animals whose sole function is to provide emotional support, comfort, therapy, companionship, therapeutic benefits, or to promote emotional well-being are not service animals.
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Video interpreting services (VIS) means an interpreting service that uses video conference technology over high speed Internet lines. VIS generally consists of a videophone, monitors, cameras, a high speed Internet connection, and an interpreter.
Wheelchair means a device designed solely for use by an individual with a mobility impairment for the primary purpose of locomotion in typical indoor and outdoor pedestrian areas. A wheelchair may be manually operated or power-driven.
4. Amend § 35.133 by adding paragraph (c) to read as follows:
§ 35.133 Maintenance of accessible features.
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(c) If the proposed standards reduce the number of required accessible elements below the number required by the 1991 Standards, the number of accessible elements in a facility subject to this part may be reduced in accordance with the requirements of the proposed standards.
5. Amend 28 CFR part 35 by adding § 35.136 to read as follows:
(a) General. Generally, a public entity shall modify its policies, practices, or procedures to permit the use of a service animal by an individual with a disability, unless the public entity can demonstrate that the use of a service animal would fundamentally alter the public entity's service, program, or activity.
(b) Exceptions. A public entity may ask an individual with a disability to remove a service animal from the premises if:
(1) The animal is out of control and the animal's handler does not take effective action to control it;
(2) The animal is not housebroken or the animal's presence or behavior fundamentally alters the nature of the service the public entity provides; or
(3) The animal poses a direct threat to the health or safety of others that cannot be eliminated by reasonable modifications.
(c) If an animal is properly excluded. If a public entity properly excludes a service animal, it shall give the individual with a disability the opportunity to participate in the service, program, or activity without having the service animal on the premises.
(d) General requirements. The work or tasks performed by a service animal shall be directly related to the handler's disability. A service animal that accompanies an individual with a disability into a facility of a public entity shall be individually trained to do work or perform a task, housebroken, and under the control of its handler. A service animal shall have a harness, leash, or other tether.
(e) Care or supervision of service animals. A public entity is not responsible for caring for or supervising a service animal.
(f) Inquiries. A public entity shall not ask about the nature or extent of a person's disability, but can determine whether an animal qualifies as a service animal. For example, a public entity may ask: if the animal is required because of a disability; and what work or task the animal has been trained to perform. A public entity shall not require documentation, such as proof that the animal has been certified or licensed as a service animal.
(g) Access to areas open to the public, program participants, and invitees. Individuals with disabilities who are accompanied by service animals may access all areas of a public entity's facility where members of the public, program participants and invitees are allowed to go, unless the public entity can demonstrate that individuals accompanied by service animals would fundamentally alter the public entity's service, program, or activity.
(h) Fees or surcharges. A public entity shall not ask or require an individual with a disability to post a deposit, pay a fee or surcharge, or comply with other requirements not generally applicable to other citizens as a condition of permitting a service animal to accompany its handler in a public entity's facility, even if people accompanied by pets are required to do so. If a public entity normally charges its citizens for damage that they cause, a citizen with a disability may be charged for damage caused by his or her service animal.
6. Amend 28 CFR part 35 by adding § 35.137 to read as follows:
§ 35.137 Mobility devices.
(a) Use of wheelchairs, scooters, and manually powered mobility aids. A public entity shall permit individuals with mobility impairments to use wheelchairs, scooters, walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility impairments in any areas open to pedestrian use.
(b) Other power-driven mobility devices. A public entity shall make reasonable modifications in its policies, practices, and procedures to permit the use of other power-driven mobility devices by individuals with disabilities, unless the public entity can demonstrate that the use of the device is not reasonable or that its use will result in a fundamental alteration of the public entity's service, program, or activity.
(c) Development of policies permitting the use of other power-driven mobility devices. A public entity shall establish policies to permit the use of other power-driven mobility devices by individuals with disabilities when it is reasonable to allow an individual with a disability to participate in a service, program, or activity. Whether a modification is reasonable to allow the use of a class of power-driven mobility device by an individual with a disability in specific venues (e.g., parks, courthouses, office buildings, etc.) shall be determined based on:
(1) The dimensions, weight, and operating speed of the mobility device in relation to a wheelchair;
(2) The risk of potential harm to others by the operation of the mobility device;
(3) The risk of harm to the environment or natural or cultural resources or conflict with Federal land management laws and regulations; and
(4) The ability of the public entity to stow the mobility device when not in use, if requested by the user.
(d) Inquiry into use of power-driven mobility device. A public entity may ask a person using a power-driven mobility device if the mobility device is needed due to the person's disability. A public entity shall not ask a person using a mobility device questions about the nature and extent of the person's disability.
7. Amend 28 CFR part 35 by adding § 35.138 to read as follows:
§ 35.138 Ticketing.
(a) General. A public entity that sells tickets on a preassigned basis shall modify its policies, practices, or procedures to ensure that individuals with disabilities can purchase tickets for accessible seating during the same hours, through the same methods of distribution, and in the same types and numbers of ticketing sales outlets as other patrons, unless the modification would fundamentally alter the nature of the ticketing service, program, or activity.
(b) Availability. Tickets for accessible seating shall be made available during all stages of ticket sales, including, but not limited to, presales, promotions, lotteries, wait-lists, and general sales.
(c) Identification of accessible seating. If seating maps, plans, brochures, or other information is provided to the general public, wheelchair seating and companion seats shall be identified.
(d) Notification of accessible seating locations. A public entity that sells or distributes tickets for seating at assembly areas shall, upon inquiry, inform spectators with disabilities and their companions of the locations of all unsold or otherwise available accessible seating for any ticketed event at the facility.
(e) Sale of season tickets or other tickets for multiple events. Season tickets or other tickets sold on a multi-event basis to individuals with disabilities and their companions shall be sold under the same terms and conditions as other tickets sold for the same series of events. Spectators purchasing tickets for accessible seating on a multi-event basis shall also be permitted to transfer tickets for single-event use by friends or associates in the same fashion and to the same extent as permitted other spectators holding tickets for the same type of ticketing plan.
(f) Hold and release of accessible seating. A public entity may release unsold accessible seating to any person with or without a disability following any of the circumstances described below:
(1) When all seating (excluding luxury boxes, club boxes, or suites) for an event has been sold;
(2) When all seating in a designated area in the facility has been sold and the accessible seating being released is in the same designated area; or
(3) When all seating in a designated price range has been sold and the accessible seating being sold is within the same designated price range. Nothing in this provision requires a facility to release wheelchair seats for general sale.
(g) Ticket prices. The price of tickets for accessible seating shall not be set higher than for tickets to seating located in the same seating section for the same event. Accessible seating must be made available at all price levels for an event. If an existing facility has barriers to accessible seating at a particular price level for an event, then a percentage (determined by the ratio of the total number of seats at that price level to the total number of seats in the assembly area) of the number of accessible seats must be provided at that price level in an accessible location.
(h) Prevention of fraudulent purchase of accessible seating. A public entity may not require proof of disability before selling a wheelchair space.
(1) For the sale of single-event tickets, it is permissible to inquire whether the individual purchasing the wheelchair space uses a wheelchair.
(2) For season tickets, subscriptions, or other multi-events, it is permissible to ask the individual to attest in writing that the wheelchair space is for an individual who utilizes a wheelchair. A public entity may investigate the potential misuse of accessible seating where there is good cause to believe that such seating has been purchased fraudulently.
(i) Purchasing multiple tickets.
(1) Individuals with disabilities and their companions shall be permitted to purchase the same maximum number of tickets for an event per sales transaction as other spectators seeking to purchase seats for the same event. If there is an insufficient number of seats for all members of a party to sit together, seats shall be provided that are as close as possible to the wheelchair spaces. For accessible seating in a designated wheelchair area, a public entity shall provide up to three companion seats for each person with a disability who requires a wheelchair space, provided that at the time of purchase there are sufficient available wheelchair spaces.
(2) For group sales, if a group includes one or more individuals who use a wheelchair, the group shall be placed in a seating area that includes wheelchair spaces so that, if possible, the group can sit together. If it is necessary to divide the group, it should be divided so that the individuals in the group who use wheelchairs are not isolated from their group.
8. Amend § 35.150 as follows:
a. Redesignate paragraph (b)(2) as paragraph (b)(3);
b. Add the words "or acquisition" after the word "redesign" in the first sentence of paragraph (b)(1) and add paragraphs (b)(2), (b)(4), and (b)(5) to read as follows:
§ 35.150 Existing facilities.
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(b) * * *
(2) Safe harbor. If a public entity has constructed or altered elements in an existing facility in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standard, such public entity is not, solely because of the Department's adoption of the proposed standards, required to retrofit such elements to reflect incremental changes in the proposed standards.
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(4) Reduced scoping for existing facilities. For measures taken to comply with the program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:
(i) In addition to the provisions of section 240.2.1 of the proposed standards, where an existing play area provides elevated play components, an additional number of ground level play components may be substituted for the number of elevated play components that would have been required to comply with the provisions of section 240.2.2 of the proposed standards; and
(ii) Where an existing swimming pool has at least 300 linear feet of swimming pool wall, it shall comply with the applicable requirements for swimming pools, except that it shall provide at least one accessible means of entry that complies with section 1009.2 or section 1009.3 of the proposed standards.
(5) Exemption for small facilities. For measures taken to comply with the program accessibility requirements of this section, existing facilities shall comply with the applicable requirements for alterations in § 35.151 of this part, except as follows:
(i) Where an existing play area has less than 1000 square feet, it shall be exempt from the provisions of section 240 of the proposed standards;
(ii) Where an existing swimming pool has less than 300 linear feet of swimming pool wall, it shall be exempt from the provisions of section 242.2 of the proposed standards; and
(iii) Where an existing sauna or steam room was designed and constructed to seat only two people, it shall be exempt from the provisions of § 241 of the proposed standards.
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9. Revise § 35.151 to read as follows:
§ 35.151 New construction and alterations.
(a) Design and construction.
(1) 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.
(2) Exception for structural impracticability.
(i) 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.
(ii) 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.
(b) Alteration.
(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) The path of travel requirements of § 35.151(b)(4) shall not apply to measures taken solely to comply with the program accessibility requirements of this section.
(3) Alterations to historic properties shall comply, to the maximum extent feasible, with the provisions applicable to historic properties in the design standards specified in § 35.151(c). If 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 § 35.150.
(4) Path of travel. 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 and scope of the overall alterations.
(i) 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.
(A) 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.
(B) 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.
(ii) 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.
(A) 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.
(B) For the purposes of this section, the term path of travel also includes the restrooms, telephones, and drinking fountains serving the altered area.
(C) Safe harbor. If a public entity has constructed or altered required elements of a path of travel in accordance with the specifications in either the 1991 Standards or the Uniform Federal Accessibility Standards, the public entity is not required to retrofit such elements to reflect incremental changes in the proposed standards solely because of an alteration to a primary function area served by that path of travel.
(iii) Disproportionality.
(A) 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 twenty percent (20%) of the cost of the alteration to the primary function area.
(B) Costs that may be counted as expenditures required to provide an accessible path of travel may include:
(1) Costs associated with providing an accessible entrance and an accessible route to the altered area, e.g., the cost of widening doorways or installing ramps;
(2) Costs associated with making restrooms accessible, such as installing grab bars, enlarging toilet stalls, insulating pipes, or installing accessible faucet controls;
(3) Costs associated with providing accessible telephones, such as relocating a telephone to an accessible height, installing amplification devices, or installing a text telephone (TTY); and
(4) Costs associated with relocating an inaccessible drinking fountain.
(iv) Duty to provide accessible features in the event of disproportionality.
(A) 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.
(B) In choosing which accessible elements to provide, priority should be given to those elements that will provide the greatest access, in the following order:
(1) An accessible entrance;
(2) An accessible route to the altered area;
(3) At least one accessible restroom for each sex or a single unisex restroom;
(4) Accessible telephones;
(5) Accessible drinking fountains; and
(6) When possible, additional accessible elements such as parking, storage, and alarms.
(v) Series of smaller alterations.
(A) 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.
(B)
(1) 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.
(2) Only alterations undertaken after the effective date of this part shall be considered in determining if the cost of providing an accessible path of travel is disproportionate to the overall cost of the alterations.
(c) Accessibility standards.
(1) For facilities on which construction commences before [date six months after the effective date of the final rule], design, construction, or alteration of facilities in conformance with the Uniform Federal Accessibility Standards (UFAS) (Appendix A to 41 CFR part 101-19.6) or with the Americans with Disabilities Act Accessibility Guidelines for Buildings and Facilities (Appendix A to the Department of Justice's final rule implementing title III of the ADA, 56 FR 35544) shall be deemed to comply with the requirements of this section with respect to those facilities, except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(j) of the 1991 Standards shall not apply. Departures from particular requirements of either standard by the use of other methods shall be permitted when it is clearly evident that equivalent access to the facility or part of the facility is thereby provided.
(2) Facilities on which construction commences on or after [date six months after the effective date of the final rule], shall comply with the proposed standards.
(d) Scope of coverage. The proposed standards apply to fixed or built-in elements of buildings, structures, site improvements, and pedestrian routes or vehicular ways located on a site. Unless specifically stated otherwise in the text, advisory notes, appendix notes, and figures contained in the ADA Standards explain or illustrate the requirements of the rule; they do not establish enforceable requirements.
(e) Social service establishments. Group homes, halfway houses, shelters, or similar social service establishments that provide temporary sleeping accommodations or residential dwelling units subject to the proposed standards shall comply with the provisions of the proposed standards that apply to residential facilities, including, but not limited to, the provisions in sections 233 and 809.
(1) In sleeping rooms covered by this section with more than twenty-five beds, five percent (5%) minimum of the beds shall have clear floor space complying with section 806.2.3.
(f) Housing at a place of education. Dormitories or residence halls operated by or on behalf of places of education that are subject to the proposed standards shall comply with the provisions applicable to transient lodging, including, but not limited to, the requirements for transient lodging guest rooms in sections 224 and 806.
(g) Assembly areas. Assembly areas subject to the proposed standards shall comply with the provisions applicable to assembly areas, including, but not limited to, sections 221 and 804. In addition, assembly areas shall ensure that -
(1) Wheelchair and companion seating locations are dispersed among all levels of the facility that are served by an accessible route;
(2) Wheelchair and companion seating locations are not located on (or obstructed by) temporary platforms or other movable structures. When wheelchair seating locations are not required to accommodate people who use wheelchairs, individual, readily removable seats may be placed in those spaces;
(3) Facilities that have more than 5,000 seats shall provide at least five wheelchair locations that are configured to provide at least three companion seats for each wheelchair space; and
(4) Stadium-style movie theaters locate wheelchair seating spaces and companion seating on a riser or cross-aisle in the stadium section that satisfies at least one of the following criteria:
(i) It is located within the rear sixty percent (60%) of the seats provided in an auditorium; or
(ii) It is located within the area of an auditorium in which the vertical viewing angles (as measured to the top of the screen) are from the 40th to the 100th percentile of vertical viewing angles for all seats as ranked from the seats in the first row (1st percentile) to seats in the back row (100th percentile).
(h) Medical care facilities. Medical care facilities subject to the proposed standards shall comply with the provisions applicable to medical care facilities, including, but not limited to, sections 223 and 805. In addition, medical care facilities that do not specialize in the treatment of conditions that affect mobility shall disperse the accessible patient rooms required by section 223.2.1 in a manner that enables patients with disabilities to have access to appropriate specialty services.
(i) Curb ramps.
(1) Newly constructed or altered streets, roads, and highways must contain curb ramps at any intersection having curbs or other barriers to entry from a street level pedestrian walkway.
(2) Newly constructed or altered street level pedestrian walkways must contain curb ramps at intersections to streets, roads, or highways.
10. Amend 28 CFR part 35 by adding § 35.152 to read as follows:
§ 35.152 Detention and correctional facilities.
(a) General. Public entities that are responsible for the operation or management of detention and correctional facilities, either directly or through contracts or other arrangements, shall comply with this section.
(b) Discrimination prohibited.
(1) Public entities shall ensure that qualified inmates or detainees with disabilities shall not, because that facility is inaccessible to or unusable by individuals with disabilities, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any public entity unless the public entity can demonstrate that the required actions would result in a fundamental alteration or undue burden.
(2) Public entities shall ensure that inmates or detainees with disabilities are housed in the most integrated setting appropriate to the needs of the individuals. Unless the public entity can demonstrate that it is appropriate to make an exception for a specific individual, a public entity -
(i) Should not place inmates or detainees with disabilities in inappropriate security classifications because no accessible cells or beds are available;
(ii) Should not place inmates or detainees with disabilities in designated medical areas unless they are actually receiving medical care or treatment;
(iii) Should not place inmates or detainees with disabilities in facilities that do not offer the same programs as the facilities where they would ordinarily be housed; and
(iv) Should not deprive inmates or detainees with disabilities of visitation with family members by placing them in distant facilities where they would not otherwise be housed.
(c) Alterations to detention and correctional facilities. Alterations to jails, prisons, and other detention and correctional facilities will comply with the requirements of § 35.151(b). However, when alterations are made to specific cells, detention and correctional facility operators may satisfy their obligation to provide the required number of cells with mobility features by providing the required mobility features in substitute cells (i.e., cells other than those where alterations are originally planned), provided that each substitute cell-
(1) Is located within the same facility;
(2) Is integrated with other cells to the maximum extent feasible; and
(3) Has, at a minimum, equal physical access as the altered cells to areas used by inmates or detainees for visitation, dining, recreation, educational programs, medical services, work programs, religious services, and participation in other programs that the facility offers to inmates or detainees.
11. Revise § 35.160 to read as follows:
§ 35.160 General.
(a)
(1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public with disabilities, and companions thereof are as effective as communications with others.
(2) For purposes of this section, companion means a family member, friend, or associate of a program participant who, along with the participant, is an appropriate person with whom the public entity should communicate.
(b) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities and their companions who are individuals with disabilities, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
(c)
(1) A public entity shall not require an individual with a disability to bring another individual to interpret for him or her.
(2) A public entity shall not rely on an individual accompanying an individual with a disability to interpret or facilitate communication, except in an emergency involving a threat to public safety or welfare, or unless the individual with a disability specifically requests it, the accompanying individual agrees to provide the assistance, and reliance on that individual for this assistance is appropriate under the circumstances.
(d) Video interpreting services (VIS). A public entity that chooses to provide qualified interpreters via VIS shall ensure that it provides -
(1) High quality, clear, real-time, full-motion video and audio over a dedicated high speed Internet connection;
(2) A clear, sufficiently large, and sharply delineated picture of the interpreter's head and the participating individual's head, arms, hands, and fingers, regardless of his body position;
(3) Clear transmission of voices; and
(4) Training to nontechnicians so that they may quickly and efficiently set up and operate the VIS.
(e) Sports stadiums. One year after the effective date of this regulation, sports stadiums that have a seating capacity of 25,000 or more shall provide captioning on the scoreboards and video monitors for safety and emergency information.
12. Revise § 35.161 to read as follows:
§ 35.161 Telecommunications.
(a) Where a public entity communicates by telephone with applicants and beneficiaries, text telephones (TTYs) or equally effective telecommunications systems shall be used to communicate with individuals who are deaf or hard of hearing or have speech impairments.
(b) When a public entity uses an automated attendant system for receiving and directing incoming telephone calls, that automated attendant system must provide effective communication with individuals using auxiliary aids and services, including TTYs or a telecommunications relay system.
(c) A public entity shall respond to telephone calls from a telecommunications relay service established under title IV of the Americans with Disabilities Act in the same manner that it responds to other telephone calls.
13. Amend § 35.171 by revising paragraph (a)(2) to read as follows:
§ 35.171 Acceptance of complaints.
(a) * * *
(i) If an agency other than the Department of Justice determines that it does not have section 504 jurisdiction and is not the designated agency, it shall promptly refer the complaint to either the appropriate designated agency or agency that has section 504 jurisdiction or to the Department of Justice, and so notify the complainant.
(ii) When the Department of Justice receives a complaint for which it does not have jurisdiction under section 504 and is not the designated agency, it may exercise jurisdiction pursuant to § 35.190(e) or refer the complaint to an agency that does have jurisdiction under section 504 or to the appropriate agency designated in subpart G of this part or, in the case of an employment complaint that is also subject to title I of the Act, to the Equal Employment Opportunity Commission.
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14. Revise § 35.172 to read as follows:
§ 35.172 Investigations and compliance reviews.
(a) The designated agency shall investigate complaints for which it is responsible under § 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 and a violation is found, 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 §§ 35.173 and 35.174.
(d) At any time, the complainant may file a private suit pursuant to § 203 of the Act, whether or not the designated agency finds a violation.
15. Amend § 35.190 by adding paragraph (e) to read as follows:
§ 35.190 Designated agencies.
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(e) When the Department receives a complaint directed to the Attorney General alleging a violation of this part that may fall within the jurisdiction of a designated agency or another Federal agency that may have jurisdiction under section 504, the Department may exercise its discretion to retain the complaint for investigation under this part.
_________________________
Dated: May 30, 2008.
__________________________
Michael B. Mukasey,
Attorney General.
[FR DOC. E8-12622 Filed 6-16-08; 8:45 am]
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