2011-5581. Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities; Corrections

AGENCY:

Department of Justice, Civil Rights Division.

ACTION:

Final rule; correction.

SUMMARY:

This document contains corrections to the final rule published in the Federal Register of Wednesday, September 15, 2010, at 75 FR 56236, relating to nondiscrimination on the basis of disability by public accommodations and in commercial facilities. This document will correct an inadvertent error in an instruction, the omission of some language in the rule, and an error reflected in certain sections of the rule relating to service animals.

DATES:

Effective Date: March 15, 2011.

FOR FURTHER INFORMATION CONTACT:

Christina Galindo-Walsh, Attorney Advisor, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at [phone] (voice or TTY). This is not a toll-free number. Information may also be obtained from the Department's toll-free ADA Information Line at [phone] (voice) or [phone] (TTY).

SUPPLEMENTARY INFORMATION:

The final rule that is the subject of these corrections revises the Department of Justice regulations implementing title III of the Americans with Disabilities Act (ADA), which adopt enforceable accessibility standards under the ADA that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board (Access Board), and update or amend certain provisions of the title III regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991.

I. Need for Corrections

As published, an instruction in the final rule has the unintended effect of deleting several paragraphs currently in the Code of Federal Regulations. Specifically, on page 56250, § 36.104 is amended by revising the definition of “place of public accommodation.” However, only the introductory text of that definition, and paragraph (1) and its subparagraphs, are set out below the instruction and were meant to be amended. The Code of Federal Regulations also currently includes paragraphs (2) through (12) to that definition, and, as the instruction is written, those paragraphs will drop out of the Code of Federal Regulations as of the effective date of the final rule, March 15, 2011. This problem can be avoided by revising the instruction. Where the instruction currently reads “* * * revising the definitions of place of public accommodation, qualified interpreter, and service animal * * *” it should be corrected to read as follows: “* * * revising the introductory text and paragraph (1) of the definition of place of public accommodation, and revising the definitions of qualified interpreter and service animal * * *.”

Additionally, the final rule contains an error in wording that may cause confusion over the interpretation of the rule. Specifically, on page 56250, in § 36.104 (“Definitions”), the “service animal” definition includes the following language: “The work or tasks performed by a service animal must be directly related to the handler's disability.” Because a service animal is not always controlled by the individual with a disability, the service animal's “handler” is not necessarily the individual with a disability. To clear up any confusion, the word “handler's” should be replaced with the word “individual's” in that sentence. Similar use of the word “handler” in the section-by-section analysis contained in Appendix A to part 36 also needs to be changed to “individual” so it is clear that the individual with a disability does not necessarily need to be the animal's handler in order to be covered by the rule's provisions.

Finally, the final rule inadvertently omitted some language that may cause confusion over the interpretation of the rule. Specifically, on page 56251, § 36.302(e)(1) reads as follows: “A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by telephone, in-person, or through a third party * * *.” The intention was not to limit reservation policies to only those made in those three scenarios. In the NPRM, these items were included as examples, and the Department gave no indication it intended to revise the broad language to limit the application to only those three situations. The language indicating that those three scenarios operated as examples was inadvertently deleted. The language should be revised to read as follows: “A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party * * *.”

II. Corrections

In the final rule FR Doc. 2010-21824, beginning on page 56236 in the Federal Register of Wednesday, September 15, 2010, 75 FR 56236, make the following corrections:

1. On page 56250, in the first column, starting on line 54, under Subpart A—General, paragraph 2, remove the following language from the instruction: “Amend § 36.104 by adding the following definitions of 1991 Standards, 2004 ADAAG, 2010 Standards, direct threat, existing facility, housing at a place of education, other power-driven mobility device, qualified reader, video remote interpreting (VRI) service, and wheelchair in alphabetical order and revising the definitions of place of public accommodation, qualified interpreter, and service animal to read as follows” and add in its place corrected language to read as follows: “Amend § 36.104 by adding the following definitions of 1991 Standards, 2004 ADAAG, 2010 Standards, direct threat, existing facility, housing at a place of education, other power-driven mobility device, qualified reader, video remote interpreting (VRI) service, and wheelchair in alphabetical order, revising the introductory text and paragraph (1) of the definition of place of public accommodation, and revising the definitions of qualified interpreter and service animal to read as follows:”.

§ 36.104

[Corrected]

2. On page 56250, in the third column, starting on line 41, in § 36.104, in the definition of “Service animal” correct the third sentence of the definition to read as follows: “The work or tasks performed by a service animal must be directly related to the individual's disability.”

§ 36.302

[Corrected]

3. On page 56251, in the third column, starting on line 48, in § 36.302(e)(1), correct the sentence following the italic heading in the introductory text to read as follows: “A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party—”

Appendix A to Part 36 [Corrected]

4. On page 56266, in the first column, starting on line 15, remove the following sentence: “The work or tasks performed by a service animal must be directly related to the handler's disability” and add in its place the corrected sentence to read as follows: “The work or tasks performed by a service animal must be directly related to the individual's disability.”

5. On page 56266, in the second column, starting on line 50, remove the following sentence: “Other commenters identified non-violent behavioral tasks that could be construed as minimally protective, such as interrupting self-mutilation, providing safety checks and room searches, reminding the handler to take medications, and protecting the handler from injury resulting from seizures or unconsciousness” and add in its place the corrected sentence to read as follows: “Other commenters identified non-violent behavioral tasks that could be construed as minimally protective, such as interrupting self-mutilation, providing safety checks and room searches, reminding the individual to take medications, and protecting the individual from injury resulting from seizures or unconsciousness.”

6. On page 56266, in the third column, starting on line 4, remove the sentence that reads: “While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression but could include actively cuing the handler by nudging or pawing the handler to alert to the onset of an episode and removing the individual from the anxiety-provoking environment” and add in its place the corrected sentence to read as follows: “While many individuals with PTSD may benefit by using a service animal, the work or tasks performed appropriately by such an animal would not involve unprovoked aggression, but could include actively cuing the individual by nudging or pawing the individual to alert to the onset of an episode and removing the individual from the anxiety-provoking environment.”

7. On page 56267, in the first column, starting on line 40, remove the following sentence: “A pet or support animal may be able to discern that the handler is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal” and add in its place the corrected sentence to read as follows: “A pet or support animal may be able to discern that the individual is in distress, but it is what the animal is trained to do in response to this awareness that distinguishes a service animal from an observant pet or support animal.”

8. On page 56269, in the second column, starting on line 20, remove the following sentence: “Tasks performed by psychiatric service animals may include reminding the handler to take medicine, providing safety checks or room searches for persons with PTSD, interrupting self-mutilation, and removing disoriented individuals from dangerous situations” and add in its place the corrected sentence to read as follows: “Tasks performed by psychiatric service animals may include reminding individuals to take medicine, providing safety checks or room searches for individuals with PTSD, interrupting self-mutilation, and removing disoriented individuals from dangerous situations.”

9. On page 56271, in the second column, starting on line 65, remove the following sentence: “The Department has moved the requirement that the work or tasks performed by the service animal must be related directly to the handler's disability to the definition of `service animal' in § 36.104” and add in its place the corrected sentence to read as follows: “The Department has moved the requirement that the work or tasks performed by the service animal must be related directly to the individual's disability to the definition of `service animal' in § 36.104.”

Dated: March 7, 2011.

Rosemary Hart,

Special Counsel.