Withdrawn: 28 CFR Parts 35 and 36, Nondiscrimination on the Basis of Disability by State and Local Governments and Places of Public Accommodation; Equipment and Furniture (ANPRM)

A. Statutory and rulemaking history

On July 26, 1990, President George H.W. Bush signed into law the ADA, a comprehensive civil rights law prohibiting discrimination on the basis of disability. 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. 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. 42 U.S.C. 12101 et seq. Section 204 (a) of title II and section 306(b) of title III direct the Attorney General to promulgate regulations to carry out the provisions of titles II and III, other than certain provisions dealing specifically with transportation. 42 U.S.C. 12134; 42 U.S.C. 12186(b).

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 on discrimination established by section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. 794 (section 504), to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. 42 U.S.C. 12131–65.

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (private entities whose operations affect commerce and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational 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. 42U.S.C. 12181–89.

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 ADA Standards for Accessible Design (1991 Standards). These Standards resulted from the Department's incorporation into the rule of the 1991 ADA Accessibility Guidelines (1991 ADAAG) promulgated by the U.S. Architectural and Transportation Barriers Compliance Board (Access Board). The Department is a member of the Access Board and participates in its development of accessibility guidelines. On September 30, 2004, the Department published an advance notice of proposed rulemaking (2004 ANPRM) to begin the process of updating the 1991 regulations and to adopt revised ADA Standards based on the relevant parts of the Access Board's 2004 ADA/Architectural Barriers Act (ABA) Accessibility Guidelines. 69 FR 44084. The Department issued Notices of Proposed Rulemaking (NPRMs) to revise the title II and title III regulations and these incorporated the 2004 ADA/ABA Accessibility Guidelines into the revised ADA Standards. 73 FR 34466 (June 17, 2008). The NPRMs addressed the issues raised in the comments to the ANPRM and sought additional comment.

The 2004 ANPRM asked for public comment on a range of issues not specifically addressed in the ADA regulations, including coverage of movable or portable equipment and furniture. 59 FR 58768. Although the Department received public comments in response to the ANPRM supporting its regulation of equipment and furniture, when the Department issued its 2008 NPRM, it announced its decision not to address equipment at that time. 73 FR 34466, 34474-75 (June 17, 2008). Instead, the Department continued its approach of requiring accessible equipment and furniture on a case-by-case basis. Under the regulatory provisions governing reasonable modifications of policies, practices, or procedures, program accessibility, effective communication, and barrier removal, the Department has continued its long-standing practice of requiring accessible equipment and furniture.

The Department received numerous comments urging it to issue equipment and furniture regulations. Based on these comments and for the reasons detailed below, the Department has decided to begin the process of soliciting comments and suggestions with respect to what an NPRM regarding equipment and furniture should contain.