Subpart A -- General 
35.101 Purpose. 
     The purpose of this part is to effectuate subtitle A of title II of the
Americans with Disabilities Act of 1990, (42 U.S.C. 12131)  which prohibits
discrimination on the basis of disability by public entities.  
 
Subpart A -- General 
35.101 Purpose. 
     Section 35.101 states the purpose of the rule, which is to effectuate
subtitle A of title II of the Americans with Disabilities Act of 1990 (the
Act), which prohibits discrimination on the basis of disability by public
entities.  This part does not, however, apply to matters within the scope
of the authority of the Secretary of Transportation under subtitle B of
title II of the Act. 

35.102 Application. 
     (a)  Except as provided in paragraph (b) of this section, this part
applies to all services, programs, and activities provided or made available
by public entities. 
 
     (b)  To the extent that public transportation services, programs, and
activities of public entities are covered by subtitle B of title II (42
U.S.C. 12141), of the ADA, they are not subject to the requirements of this
part. 
 
 35.102 Application. 
     This provision specifies that, except as provided in paragraph (b), the
regulation applies to all services, programs, and activities provided or
made available by public entities, as that term is defined in 35.104. 
Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), which
prohibits discrimination on the basis of handicap in federally assisted
programs and activities, already covers those programs and activities of
public entities that receive Federal financial assistance.  Title II of the
ADA extends this prohibition of discrimination to include all services,
programs, and activities provided or made available by State and local
governments or any of their instrumentalities or agencies, regardless of the
receipt of Federal financial assistance.  Except as provided in 35.134, this
part does not apply to private entities. 
 
     The scope of title II's coverage of public entities is comparable to
the coverage of Federal Executive agencies under the 1978 amendment to
section 504, which extended section 504's application to all programs and
activities "conducted by" Federal Executive agencies, in that title II
applies to anything a public entity does.  Title II coverage, however, is
not limited to "Executive" agencies, but includes activities of the
legislative and judicial branches of State and local governments.  All
governmental activities of public entities are covered, even if they are
carried out by contractors.  For example, a State is obligated by title II
to ensure that the services, programs, and activities of a State park inn
operated under contract by a private entity are in compliance with title
II's requirements.  The private entity operating the inn would also be
subject to the obligations of public accommodations under title III of the
Act and the Department's title III regulations at 28 CFR Part 36. 
 
     Aside from employment, which is also covered by title I of the Act,
there are two major categories of programs or activities covered by this
regulation:  those involving general public contact as part of ongoing
operations of the entity and those directly administered by the entities for
program beneficiaries and participants.  Activities in the first category
include communication with the public (telephone contacts, office walk-ins,
or interviews) and the public's use of the entity's facilities.  Activities
in the second category include programs that provide State or local
government services or benefits. 

     Paragraph (b) of 35.102 explains that to the extent that the public
transportation services, programs, and activities of public entities are
covered by subtitle B of title II of the Act, they are subject to the
regulation of the Department of Transportation (DOT) at 49 CFR Part 37, and
are not covered by this part.  The Department of Transportation's ADA
regulation establishes specific requirements for construction of
transportation facilities and acquisition of vehicles.  Matters not covered
by subtitle B, such as the provision of auxiliary aids, are covered by this
rule.  For example, activities that are covered by the Department of
Transportation's regulation implementing subtitle B are not required to be
included in the self-evaluation required by 35.105.  In addition, activities
not specifically addressed by DOT's ADA regulation may be covered by DOT's
regulation implementing section 504 for its federally assisted programs and
activities at 49 CFR Part 27.  Like other programs of public entities that
are also recipients of Federal financial assistance, those programs would
be covered by both the section 504 regulation and this part.  Although
airports operated by public entities are not subject to DOT's ADA
regulation, they are subject to subpart A of title II and to this rule. 
 
     Some commenters asked for clarification about the responsibilities of
public school systems under section 504 and the ADA with respect to
programs, services, and activities that are not covered by the Individuals
with Disabilities Education Act (IDEA), including, for example, programs
open to parents or to the public, graduation ceremonies, parent-teacher
organization meetings, plays and other events open to the public, and adult
education classes.  Public school systems must comply with the ADA in all
of their services, programs, or activities, including those that are open
to parents or to the public.  For instance, public school systems must
provide program accessibility to parents and guardians with disabilities to
these programs, activities, or services, and appropriate auxiliary aids and
services whenever necessary to ensure effective communication, as long as
the provision of the auxiliary aids results neither in an undue burden or
in a fundamental alteration of the program. 

35.103 Relationship to other laws. 
     (a) Rule of interpretation.  Except as otherwise provided in this part,
this part shall not be construed to apply a lesser standard than the
standards applied under title V of the Rehabilitation Act of 1973 (29 U.S.C.
791) or the regulations issued by Federal agencies pursuant to that title. 
 
     (b)  Other laws.  This part does not invalidate or limit the remedies,
rights, and procedures of any other Federal laws, or State or local laws
(including State common law) that provide greater or equal protection for
the rights of individuals with disabilities or individuals associated with
them. 
 
 35.103 Relationship to other laws. 
     Section 35.103 is derived from sections 501(a) and (b) of the ADA. 
Paragraph (a) of this section provides that, except as otherwise
specifically provided by this part, title II of the ADA is not intended to
apply lesser standards than are required under title V of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 790-94), or the regulations implementing
that title.  The standards of title V of the Rehabilitation Act apply for
purposes of the ADA to the extent that the ADA has not explicitly adopted
a different standard than title V.  Because title II of the ADA essentially
extends the antidiscrimination prohibition embodied in section 504 to all
actions of State and local governments, the standards adopted in this part
are generally the same as those required under section 504 for federally
assisted programs.  Title II, however, also incorporates those provisions
of titles I and III of the ADA that are not inconsistent with the
regulations implementing section 504.  Judiciary Committee report, H.R. Rep.
No. 485, 101st Cong., 2d Sess., pt.3, at 51 (1990) [hereinafter "Judiciary
report"]; Education and Labor Committee report, H.R. Rep. No. 485, 101st
Cong., 2d Sess., pt. 2, at 84 (1990) [hereinafter "Education and Labor
report"].  Therefore, this part also includes appropriate provisions derived
from the regulations implementing those titles.  The inclusion of specific
language in this part, however, should not be interpreted as an indication
that a requirement is not included under a regulation implementing section
504. 
 
     Paragraph (b) makes clear that Congress did not intend to  displace any
of the rights or remedies provided by other Federal laws (including section
504) or other State laws (including State common law) that provide greater
or equal protection to individuals with disabilities.  As discussed above,
the standards adopted by title II of the ADA for State and local government
services are generally the same as those required under section 504 for
federally assisted programs and activities.  Subpart F of the regulation
establishes compliance procedures for processing complaints covered by both
this part and section 504. 
 
     With respect to State law, a plaintiff may choose to pursue claims
under a State law that does not confer greater substantive rights, or even
confers fewer substantive rights, if the alleged violation is protected
under the alternative law and the remedies are greater.  For example, a
person with a physical disability could seek damages under a State law that
allows compensatory and punitive damages for discrimination on the basis of
physical disability, but not on the basis of mental disability.  In that
situation, the State law would provide narrower coverage, by excluding
mental disabilities, but broader remedies, and an individual covered by both
laws could choose to bring an action under both laws.  Moreover, State tort
claims confer greater remedies and are not preempted by the ADA.  A
plaintiff may join a State tort claim to a case brought under the ADA.  In
such a case, the plaintiff must, of course, prove all the elements of the
State tort claim in order to prevail under that cause of action. 
 
35.104 Definitions. 
     For purposes of this part, the term -- 
 
     Act means the Americans with Disabilities Act (Pub. L. 101-336, 104
Stat. 327, 42 U.S.C. 12101-12213 and 47 U.S.C. 225 and 611). 
 
     Assistant Attorney 
General means the Assistant Attorney General, Civil Rights Division, United
States Department of Justice. 
      
Auxiliary aids and services includes-- 
      
     (1)  Qualified interpreters, notetakers, transcription services,
written materials, telephone handset amplifiers, assistive listening
devices, assistive listening systems, telephones compatible with hearing
aids, closed caption decoders, open and closed captioning,
telecommunications devices for deaf persons (TDD's), videotext displays, or
other effective methods of making aurally delivered materials available to
individuals with hearing impairments; 
 
     (2)  Qualified readers, taped texts, audio recordings, Brailled
materials, large print materials, or other effective methods of making
visually delivered materials available to individuals with visual
impairments; 
      
     (3)  Acquisition or modification of equipment or devices; and 
 
     (4)  Other similar services and actions. 
 
     Complete complaint means a written statement that contains the
complainant's name and address and describes the public entity's alleged
discriminatory action in sufficient detail to inform the agency of the
nature and date of the alleged violation of this part.  It shall be signed
by the complainant or by someone authorized to do so on his or her behalf. 
Complaints filed on behalf of classes or third parties shall describe or
identify (by name, if possible) the alleged victims of discrimination. 
 
     Current illegal use of drugs means illegal use of drugs that occurred
recently enough to justify a reasonable belief that a person's drug use is
current or that continuing use is a real and ongoing problem. 
 
     Designated agency means the Federal agency designated under subpart G
of this part to oversee compliance activities under this part for particular
components of State and local governments. 
 
     Disability means, with respect to an individual, a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; a record of such an impairment; or being
regarded as having such an impairment. 
  
 
 
 
     (1)(i)  The phrase physical or mental impairment means -- 
 
     (A)  Any physiological disorder or condition, cosmetic disfigurement,
or anatomical loss affecting one or more of the following body systems:
neurological, musculoskeletal, special sense organs, respiratory (including
speech organs), cardiovascular, reproductive, digestive, genitourinary,
hemic and lymphatic, skin, and endocrine; 
 
     (B)  Any mental or psychological disorder such as mental retardation,
organic brain syndrome, emotional or mental illness, and specific learning
disabilities. 
 
     (ii)  The phrase physical or mental impairment includes, but is not
limited to, such contagious and noncontagious diseases and conditions as
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning
disabilities, HIV disease (whether symptomatic or asymptomatic),
tuberculosis, drug addiction, and alcoholism. 
 
     (iii)  The phrase physical or mental impairment does not include
homosexuality or bisexuality. 
 
     (2)  The phrase major life activities means functions such as caring
for one's self, performing manual tasks, walking, seeing, hearing, speaking,
breathing, learning, and working. 
   
     (3)  The phrase has a record of such an impairment means has a history
of, or has been misclassified as having, a mental or physical impairment
that substantially limits one or more major life activities. 
 
     (4)  The phrase is regarded as having an impairment means- 
 
     (i)  Has a physical or mental impairment that does not substantially
limit major life activities but that is treated by a public entity as
constituting such a limitation; 
 
     (ii)  Has a physical or mental impairment that substantially limits
major life activities only as a result of the attitudes of others toward
such impairment; or 
 
     (iii)  Has none of the impairments defined in paragraph (1) of this
definition but is treated by a public entity as having such an impairment. 
 
     (5)  The term disability does not include -- 
 
     (i)  Transvestism, transsexualism, pedophilia, exhibitionism,
voyeurism, gender identity disorders not resulting from physical
impairments, or other sexual behavior disorders; 
 
     (ii)  Compulsive gambling, kleptomania, or pyromania; or 
 
     (iii)  Psychoactive substance use disorders resulting from current
illegal use of drugs. 
  
     Drug means a controlled substance, as defined in schedules I through
V of section 202 of the Controlled Substances Act (21 U.S.C. 812).   
 
     Facility means all or any portion of buildings, structures, sites,
complexes, equipment, rolling stock or other conveyances, roads, walks,
passageways, parking lots, or other real or personal property, including the
site where the building, property, structure, or equipment is located.  
 
 
     Historic preservation programs means programs conducted by a public
entity that have preservation of historic properties as a primary purpose. 
 
     Historic properties means those properties that are listed or eligible
for listing in the National Register of Historic Places or properties
designated as historic under State or local law. 
 
     Illegal use of drugs means the use of one or more drugs, the possession
or distribution of which is unlawful under the Controlled Substances Act (21
U.S.C. 812).  The term illegal use of drugs does not include the use of a
drug taken under supervision by a licensed health care professional, or
other uses authorized by the Controlled Substances Act or other provisions
of Federal law. 
       Individual with a disability means a person who has a disability. 
The term individual with a disability does not include an individual who is
currently engaging in the illegal use of drugs, when the public entity acts
on the basis of such use. 
 
     Public entity means --  
 
     (1)  Any State or local government;  
 
     (2)  Any department, agency, special purpose district, or other
instrumentality of a State or States or local government; and   
 
     (3)  The National Railroad Passenger Corporation, and any commuter
authority (as defined in section 103(8) of the Rail Passenger Service Act). 

 
     Qualified individual with a disability means an individual with a
disability who, with or without reasonable modifications to rules, policies,
or practices, the removal of architectural, communication, or transportation
barriers, or the provision of auxiliary aids and services, meets the
essential eligibility requirements for the receipt of services or the
participation in programs or activities provided by a public entity.  
 
     Qualified interpreter means an interpreter who is able to interpret
effectively, accurately, and impartially both receptively and expressively,
using any necessary specialized vocabulary. 
 
     Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub.
L. 93-112, 87 Stat. 394 (29 U.S.C. 794)), as amended.   
 
     State means each of the several States, the District of Columbia, the
Commonwealth of Puerto Rico, Guam, American Samoa, the Virgin Islands, the
Trust Territory of the Pacific Islands, and the Commonwealth of the Northern
Mariana Islands.     
  
35.104 Definitions. 

     "Act."  The word "Act" is used in this part to refer to the Americans
with Disabilities Act of 1990, Pub. L. 101-336, which is also referred to
as the "ADA." 
  
     "Assistant Attorney General."  The term "Assistant Attorney General"
refers to the Assistant Attorney General of the Civil Rights Division of the
Department of Justice. 
 
     "Auxiliary aids and services."  Auxiliary aids and services include a
wide range of services and devices for ensuring effective communication. 
The proposed definition in 35.104 provided a list of examples of auxiliary
aids and services that was taken from the definition of auxiliary aids and
services in section 3(1) of the ADA and was supplemented by examples from
regulations implementing section 504 in federally conducted programs (see
28 CFR 39.103).   
 
     A substantial number of commenters suggested that additional examples
be added to this list.  The Department has added several items to this list
but wishes to clarify that the list is not an all-inclusive or exhaustive
catalogue of possible or available auxiliary aids or services.  It is not
possible to provide an exhaustive list, and an attempt to do so would omit
the new devices that will become available with emerging technology. 
 
     Subparagraph (1) lists several examples, which would be considered
auxiliary aids and services to make aurally delivered materials available
to individuals with hearing impairments.  The Department has changed the
phrase used in the proposed rules, "orally delivered materials," to the
statutory phrase, "aurally delivered materials," to track section 3 of the
ADA and to include non-verbal sounds and alarms, and computer generated
speech.   
 
     The Department has added videotext displays, transcription services,
and closed and open captioning to the list of examples.  Videotext displays
have become an important means of accessing auditory communications through
a public address system.  Transcription services are used to relay aurally
delivered material almost simultaneously in written form to persons who are
deaf or hearing-impaired.  This technology is often used at conferences,
conventions, and hearings.  While the proposed rule expressly included
television decoder equipment as an auxiliary aid or service, it did not
mention captioning itself.  The final rule rectifies this omission by
mentioning both closed and open captioning. 
 
     Several persons and organizations requested that the Department replace
the term "telecommunications devices for deaf persons" or "TDD's" with the
term "text telephone."  The Department has declined to do so.  The
Department is aware that the Architectural and Transportation Barriers
Compliance Board (ATBCB) has used the phrase "text telephone" in lieu of the
statutory term "TDD" in its final accessibility guidelines.  Title IV of the
ADA, however, uses the term "Telecommunications Device for the Deaf" and the
Department believes it would be inappropriate to abandon this statutory term
at this time. 
 
     Several commenters urged the Department to include in the definition
of "auxiliary aids and services" devices that are now available or that may
become available with emerging technology.  The Department declines to do
so in the rule.  The Department, however, emphasizes that, although the
definition would include "state of the art" devices, public entities are not
required to use the newest or most advanced technologies as long as the
auxiliary aid or service that is selected affords effective communication. 
 
     Subparagraph (2) lists examples of aids and services for making
visually delivered materials accessible to persons with visual impairments. 
Many commenters proposed additional examples, such as signage or mapping,
audio descriptionservices, secondary auditory programs, telebraillers, and
reading machines.  While the Department declines to add these items to the
list, they are auxiliary aids and services and may be appropriate depending
on the circumstances. 
 
     Subparagraph (3) refers to acquisition or modification of equipment or
devices.  Several commenters suggested the addition of current technological
innovations in microelectronics and computerized control systems (e.g.,
voice recognition systems, automatic dialing telephones, and infrared
elevator and light control systems) to the list of auxiliary aids.  The
Department interprets auxiliary aids and services as those aids and services
designed to provide effective communications, i.e., making aurally and
visually delivered information available to persons with hearing, speech,
and vision impairments.  Methods of making services, programs, or activities
accessible to, or usable by, individuals with mobility or manual dexterity
impairments are addressed by other sections of this part, including the
provision for modifications in policies, practices, or procedures
(35.130(b)(7)). 
 
     Paragraph (b)(4) deals with other similar services and actions. 
Several commenters asked for clarification that "similar services and
actions" include retrieving items from shelves, assistance in reaching a
marginally accessible seat, pushing a barrier aside in order to provide an
accessible route, or assistance in removing a sweater or coat.  While
retrieving an item from a shelf might be an "auxiliary aid or service" for
a blind person who could not locate the item without assistance, it might
be a method of providing program access for a person using a wheelchair who
could not reach the shelf, or a reasonable modification to a self-service
policy for an individual who lacked the ability to grasp the item.  As
explained above, auxiliary aids and services are those aids and services
required to provide effective communications.  Other forms of assistance are
more appropriately addressed by other provisions of the final rule. 
 
     "Complete complaint."  "Complete complaint" is defined to include all
the information necessary to enable the Federal agency designated under
subpart G as responsible for investigation of a complaint to initiate its
investigation. 
 
"Current illegal use of drugs."  The phrase "current illegal use of drugs"
is used in 35.131.  Its meaning is discussed in the preamble for that
section. 
 
     "Designated agency."  The term "designated agency" is used to refer to
the Federal agency designated under subpart G of this rule as responsible
for carrying out the administrative enforcement responsibilities established
by subpart F of the rule. 
 
     "Disability."  The definition of the term "disability" is the same as
the definition in the title III regulation codified at 28 CFR Part 36.  It
is comparable to the definition of the term "individual with handicaps" in
section 7(8) of the Rehabilitation Act and section 802(h) of the Fair
Housing Act.  The Education and Labor Committee report makes clear that the
analysis of the term "individual with handicaps" by the Department of
Health, Education, and Welfare (HEW) in its regulations implementing section
504 (42 FR 22685 (May 4, 1977)) and the analysis by the Department of
Housing and Urban Development in its regulation implementing the Fair
Housing Amendments Act of 1988 (54 FR 3232 (Jan. 23, 1989)) should also
apply fully to the term "disability" (Education and Labor report at 50). 
 
     The use of the term "disability" instead of "handicap" and the term
"individual with a disability" instead of "individual with handicaps"
represents an effort by Congress to make use of up-to-date, currently
accepted terminology.  As with racial and ethnic epithets, the choice of
terms to apply to a person with a disability is overlaid with stereotypes,
patronizing attitudes, and other emotional connotations.  Many individuals
with disabilities, and organizations representing such individuals, object
to the use of such terms as "handicapped person" or "the handicapped."  In
other recent legislation, Congress also recognized this shift in
terminology, e.g., by changing the name of the National Council on the
Handicapped to the National Council on Disability (Pub. L. 100-630). 
 
     In enacting the Americans with Disabilities Act, Congress concluded
that it was important for the current legislation to use terminology most
in line with the sensibilities of most Americans with disabilities.  No
change in definition or substance is intended nor should one be attributed
to this change in phraseology. 

The term "disability" means, with respect to an individual - 
 
     (A)  A physical or mental impairment that substantially limits one or
more of the major life activities of such individual; 
 
     (B)  A record of such an impairment; or 
 
     (C)  Being regarded as having such an impairment. 
 
     If an individual meets any one of these three tests, he  
or she is considered to be an individual with a disability for purposes of
coverage under the Americans with Disabilities Act. 
 
     Congress adopted this same basic definition of "disability," first used
in the Rehabilitation Act of 1973 and in the Fair Housing Amendments Act of
1988, for a number of reasons.  First, it has worked well since it was
adopted in 1974.  Second, it would not be possible to guarantee
comprehensiveness by providing a list of specific disabilities, especially
because new disorders may be recognized in the future, as they have since
the definition was first established in 1974. 
 
Test A -- A physical or mental impairment that substantially      
          limits one or more of the major life activities of  
          such individual 
 
     Physical or mental impairment.  Under the first test, an individual
must have a physical or mental impairment.  As explained in paragraph (1)(i)
of the definition, "impairment" means any physiological disorder or
condition, cosmetic disfigurement, or anatomical loss affecting one or more
of the following body systems:  neurological; musculoskeletal; special sense
organs (which would include speech organs that are not respiratory such as
vocal cords, soft palate, tongue, etc.); respiratory, including speech
organs; cardiovascular; reproductive; digestive; genitourinary; hemic and
lymphatic; skin; and endocrine.  It also means any mental or psychological
disorder, such as mental retardation, organic brain syndrome, emotional or
mental illness, and specific learning disabilities.  This list closely
tracks the one used in the regulations for section 504 of the Rehabilitation
Act of 1973 (see, e.g., 45 CFR 84.3(j)(2)(i)).   
 
     Many commenters asked that "traumatic brain injury" be added to the
list in paragraph (1)(i).  Traumatic brain injury is already included
because it is a physiological condition affecting one of the listed body
systems, i.e., "neurological."  Therefore, it was unnecessary to add the
term to the regulation, which only provides representative examples of
physiological disorders. 
 
     It is not possible to include a list of all the specific conditions,
contagious and noncontagious diseases, or infections that would constitute
physical or mental impairments because of the difficulty of ensuring the
comprehensiveness of such a list, particularly in light of the fact that
other conditions or disorders may be identified in the future.  However, the
list of examples in paragraph (1)(ii) of the definition includes: 
orthopedic, visual, speech and hearing impairments, cerebral palsy,
epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease,
diabetes, mental retardation, emotional illness, specific learning
disabilities, HIV disease (symptomatic or asymptomatic), tuberculosis, drug
addiction, and alcoholism.  The phrase "symptomatic or asymptomatic" was
inserted in the final rule after "HIV disease" in response to commenters who
suggested the clarification was necessary. 

     The examples of "physical or mental impairments" in paragraph (1)(ii)
are the same as those contained in many section 504 regulations, except for
the addition of the phrase "contagious and noncontagious" to describe the
types of diseases and conditions included, and the addition of "HIV disease
(symptomatic or asymptomatic)" and "tuberculosis" to the list of examples. 
These additions are based on the committee reports, caselaw, and official
legal opinions interpreting section 504.  In School Board of Nassau County
v. Arline, 480 U.S. 273 (1987), a case involving an individual with
tuberculosis, the Supreme Court held that people with contagious diseases
are entitled to the protections afforded by section 504.  Following the
Arline decision, this Department's Office of Legal Counsel issued a legal
opinion that concluded that symptomatic HIV disease is an impairment that
substantially limits a major life activity; therefore it has been included
in the definition of disability under this part.  The opinion also concluded
that asymptomatic HIV disease is an impairment that substantially limits a
major life activity, either because of its actual effect on the individual
with HIV disease or because the reactions of other people to individuals
with HIV disease cause such individuals to be treated as though they are
disabled.  See Memorandum from Douglas W. Kmiec, Acting Assistant Attorney
General, Office of Legal Counsel, Department of Justice, to Arthur B.
Culvahouse, Jr., Counsel to the President (Sept. 27, 1988), reprinted in
Hearings on S. 933, the Americans with Disabilities Act, Before the Subcomm.
on the Handicapped of the Senate Comm. on Labor and Human Resources, 101st.
Cong., 1st Sess. 346 (1989). 
 
     Paragraph (1)(iii) states that the phrase "physical or mental
impairment" does not include homosexuality or bisexuality.  These conditions
were never considered impairments under other Federal disability laws. 
Section 511(a) of the statute makes clear that they are likewise not to be
considered impairments under the Americans with Disabilities Act. 
 
     Physical or mental impairment does not include simple physical
characteristics, such as blue eyes or black hair.   
Nor does it include environmental, cultural, economic, or other
disadvantages, such as having a prison record, or being poor. Nor is age a
disability.  Similarly, the definition does not include common personality
traits such as poor judgment or a quick temper where these are not symptoms
of a mental or psychological disorder.  However, a person who has these
characteristics and also has a physical or mental impairment may be
considered as having a disability for purposes of the Americans with
Disabilities Act based on the impairment. 
 
     Substantial Limitation of a Major Life Activity.  Under Test A, the
impairment must be one that "substantially limits a major life activity." 
Major life activities include such things as caring for one's self,
performing manual tasks, walking, seeing, hearing, speaking, breathing,
learning, and working.   
 
     For example, a person who is paraplegic is substantially limited in the
major life activity of walking, a person who is blind is substantially
limited in the major life activity of seeing, and a person who is mentally
retarded is substantially limited in the major life activity of learning. 
A person with traumatic brain injury is substantially limited in the major
life activities of caring for one's self, learning, and working because of
memory deficit, confusion, contextual difficulties, and inability to reason
appropriately. 
 
     A person is considered an individual with a disability for purposes of
Test A, the first prong of the definition, when the individual's important
life activities are restricted as to the conditions, manner, or duration
under which they can be performed in comparison to most people.  A person
with a minor, trivial impairment, such as a simple infected finger, is not
impaired in a major life activity.  A person who can walk for 10 miles
continuously is not substantially limited in walking merely because, on the
eleventh mile, he or she begins to experience pain, because most people
would not be able to walk eleven miles without experiencing some discomfort. 
 

     The Department received many comments on the proposed rule's inclusion
of the word "temporary" in the definition of "disability."  The preamble
indicated that impairments are not necessarily excluded from the definition
of "disability" simply because they are temporary, but that the duration,
or expected duration, of an impairment is one factor that may properly be
considered in determining whether the impairment substantially limits a
major life activity.  The preamble recognized, however, that temporary
impairments, such as a broken leg, are not commonly regarded as
disabilities, and only in rare circumstances would the degree of the
limitation and its expected duration be substantial.  Nevertheless, many
commenters objected to inclusion of the word "temporary" both because it is
not in the statute and because it is not contained in the definition of
"disability" set forth in the title I regulations of the Equal Employment
Opportunity Commission (EEOC).  The word "temporary" has been deleted from
the final rule to conform with the statutory language. 

     The question of whether a temporary impairment is a disability must be
resolved on a case-by-case basis, taking into consideration both the
duration (or expected duration) of the impairment and the extent to which
it actually limits a major life activity of the affected individual.   
 
     The question of whether a person has a disability should be assessed
without regard to the availability of mitigating measures, such as
reasonable modifications or auxiliary aids and services.  For example, a
person with hearing loss is substantially limited in the major life activity
of hearing, even though the loss may be improved through the use of a
hearing aid.  Likewise, persons with impairments, such as epilepsy or
diabetes, that substantially limit a major life activity, are covered under
the first prong of the definition of disability, even if the effects of the
impairment are controlled by medication. 
 
     Many commenters asked that environmental illness (also known as
multiple chemical sensitivity) as well as allergy to cigarette smoke be
recognized as disabilities.  The Department, however, declines to state
categorically that these types of allergies or sensitivities are
disabilities, because the determination as to whether an impairment is a
disability depends on whether, given the particular circumstances at issue,
the impairment substantially limits one or more major life activities (or
has a history of, or is regarded as having such an effect). 
 
     Sometimes respiratory or neurological functioning is so severely
affected that an individual will satisfy the requirements to be considered
disabled under the regulation.  Such an individual would be entitled to all
of the protections afforded by the Act and this part.  In other cases,
individuals may be sensitive to environmental elements or to smoke but their
sensitivity will not rise to the level needed to constitute a disability. 
For example, their major life activity of breathing may be somewhat, but not
substantially, impaired.  In such circumstances, the individuals are not
disabled and are not entitled to the protections of the statute despite
their sensitivity to environmental agents. 
 
     In sum, the determination as to whether allergies to cigarette smoke,
or allergies or sensitivities characterized by the commenters as
environmental illness are disabilities covered by the regulation must be
made using the same case-by-case analysis that is applied to all other
physical or mental impairments.  Moreover, the addition of specific
regulatory provisions relating to environmental illness in the final rule
would be inappropriate at this time pending future consideration of the
issue by the Architectural and Transportation Barriers Compliance Board, the
Environmental Protection Agency, and the Occupational Safety and Health
Administration of the Department of Labor. 
 
Test B -- A record of such an impairment 
 
     This test is intended to cover those who have a record of an
impairment.  As explained in paragraph (3) of the rule's definition of
disability, this includes a person who has a history of an impairment that
substantially limited a major life activity, such as someone who has
recovered from an impairment.  It also includes persons who have been
misclassified as having an impairment.   

     This provision is included in the definition in part to protect
individuals who have recovered from a physical or  
mental impairment that previously substantially limited them  
in a major life activity.  Discrimination on the basis of such  
a past impairment is prohibited.  Frequently occurring examples of the first
group (those who have a history of an impairment) are persons with histories
of mental or emotional illness, heart disease, or cancer; examples of the
second group (those who have been misclassified as having an impairment) are
persons who have been misclassified as having mental retardation or mental
illness. 
 
Test C -- Being regarded as having such an impairment 
 
     This test, as contained in paragraph (4) of the definition, is intended
to cover persons who are treated by a public entity as having a physical or
mental impairment that substantially limits a major life activity.  It
applies when a person is treated as if he or she has an impairment that
substantially limits a major life activity, regardless of whether that
person has an impairment. 
 
     The Americans with Disabilities Act uses the same "regarded as" test
set forth in the regulations implementing section 504 of the Rehabilitation
Act.  See, e.g., 28 CFR 42.540(k)(2)(iv), which provides: 
 
(iv)  "Is regarded as having an impairment" means (A) Has a physical or
mental impairment that does not substantially limit major life activities
but that is treated by a recipient as constituting such a limitation; (B) 
Has a physical or mental impairment that substantially limits major life
activities only as a result of the attitudes of others toward such
impairment; or (C)  Has none of the impairments defined in paragraph
(k)(2)(i) of this section but is treated by a recipient as having such an
impairment. 
 
     The perception of the covered entity is a key element of this test. 
A person who perceives himself or herself to have an impairment, but does
not have an impairment, and is not treated as if he or she has an
impairment, is not protected under this test. 
 
     A person would be covered under this test if a public entity refused
to serve the person because it perceived that the person  had an impairment
that limited his or her enjoyment of the goods or services being offered. 
 
     For example, persons with severe burns often encounter discrimination
in community activities, resulting in substantial limitation of major life
activities.  These persons would be covered under this test based on the
attitudes of others towards the impairment, even if they did not view
themselves as "impaired." 
 
     The rationale for this third test, as used in the Rehabilitation Act
of 1973, was articulated by the Supreme Court in Arline, 480 U.S. 273
(1987).  The Court noted that although  
an individual may have an impairment that does not in fact substantially
limit a major life activity, the reaction of others may prove just as
disabling.  "Such an impairment might not diminish a person's physical or
mental capabilities, but could nevertheless substantially limit that
person's ability to work as a result of the negative reactions of others to
the impairment."  Id. at 283.  The Court concluded that, by including this
test in the Rehabilitation Act's definition, "Congress acknowledged that
society's accumulated myths and fears about disability and diseases are as
handicapping as are the physical limitations that flow from actual
impairment."  Id. at 284. 

     Thus, a person who is denied services or benefits by a public entity
because of myths, fears, and stereotypes associated with disabilities would
be covered under this third test whether or not the person's physical or
mental condition would be considered a disability under the first or second
test in the definition. 
 
     If a person is refused admittance on the basis of an actual or
perceived physical or mental condition, and the public entity can articulate
no legitimate reason for the refusal (such as failure to meet eligibility
criteria), a perceived concern about admitting persons with disabilities
could be inferred and the individual would qualify for coverage under the
"regarded as" test.  A person who is covered because of being regarded as
having an impairment is not required to show that the public entity's
perception is inaccurate (e.g., that he will be accepted by others) in order
to receive benefits from the public entity. 
 
     Paragraph (5) of the definition lists certain conditions that are not
included within the definition of "disability."  The excluded conditions
are:  transvestism, transsexualism, pedophilia, exhibitionism, voyeurism,
gender identity disorders not resulting from physical impairments, other
sexual behavior disorders, compulsive gambling, kleptomania, pyromania, and
psychoactive substance use disorders resulting from current illegal use of
drugs.  Unlike homosexuality and bisexuality, which are not considered
impairments under either section 504 or the Americans with Disabilities Act
(see the definition of "disability," paragraph (1)(iv)), the conditions
listed in paragraph (5), except for transvestism, are not necessarily
excluded as impairments under section 504.  (Transvestism was excluded from
the definition of disability for section 504 by the Fair Housing Amendments
Act of 1988, Pub. L. 100-430, section 6(b)). 
 
     "Drug."  The definition of the term "drug" is taken from  section
510(d)(2) of the ADA. 
 
     "Facility."  "Facility" means all or any portion of buildings,
structures, sites, complexes, equipment, rolling stock or other conveyances,
roads, walks, passageways, parking lots, or other real or personal property,
including the site where the building, property, structure, or equipment is
located.  It includes both indoor and outdoor areas where human-constructed
improvements, structures, equipment, or property have been added to the
natural environment. 
 
     Commenters raised questions about the applicability of this part to
activities operated in mobile facilities, such as bookmobiles or mobile
health screening units.  Such activities would be covered by the requirement
for program accessibility in 35.150, and would be included in the definition
of "facility" as "other real or personal property," although standards for
new construction and alterations of such facilities are not yet included in
the accessibility standards adopted by 35.151.  Sections 35.150 and 35.151
specifically address the obligations of public entities to ensure
accessibility by providing curb ramps at pedestrian walkways. 
 
     "Historic preservation programs" and "Historic properties" are defined
in order to aid in the interpretation of 35.150(a)(2) and (b)(2), which
relate to accessibility of historic preservation programs, and 35.151(d),
which relates to the alteration of historic properties. 

     "Illegal use of drugs."  The definition of "illegal use of drugs" is
taken from section 510(d)(1) of the Act and clarifies that the term includes
the illegal use of one or more drugs.  
 
     "Individual with a disability" means a person who has a disability but
does not include an individual who is currently illegally using drugs, when
the public entity acts on the basis of such use.  The phrase "current
illegal use of drugs" is explained in 35.131. 
 
     "Public entity."  The term "public entity" is defined in accordance
with section 201(1) of the ADA as any State or local government; any
department, agency, special purpose district, or other instrumentality of
a State or States or local government; or the National Railroad Passenger
Corporation, and any commuter authority (as defined in section 103(8) of the
Rail Passenger Service Act).   
 
     "Qualified individual with a disability."  The definition of "qualified
individual with a disability" is taken from section 201(2) of the Act, which
is derived from the definition of "qualified handicapped person" in the
Department of Health and Human Services' regulation implementing section 504
(45 CFR 84.3(k)).  It combines the definition at 45 CFR 84.3(k)(1) for
employment ("a handicapped person who, with reasonable accommodation, can
perform the essential functions of the job in question") with the definition
for other services at 45 CFR 84.3(k)(4) ("a handicapped person who meets the
essential eligibility requirements for the receipt of such services"). 
 
     Some commenters requested clarification of the term "essential
eligibility requirements."  Because of the variety of situations in which
an individual's qualifications will be at issue, it is not possible to
include more specific criteria in the definition.  The "essential
eligibility requirements" for participation in some activities covered under
this part may be minimal.  For example, most public entities provide
information about their operations as a public service to anyone who
requests it.  In such situations, the only "eligibility requirement" for
receipt of such information would be the request for it.  Where such
information is provided by telephone, even the ability to use a voice
telephone is not an "essential eligibility requirement," because 35.161
requires a public entity to provide equally effective telecommunication
systems for individuals with impaired hearing or speech. 
 
     For other activities, identification of the "essential eligibility
requirements" may be more complex.  Where questions of safety are involved,
the principles established in 36.208 of the Department's regulation
implementing title III of the ADA, to be codified at 28 CFR Part 36, will
be applicable.  That section implements section 302(b)(3) of the Act, which
provides that a public accommodation is not required to permit an individual
to participate in or benefit from the goods, services, facilities,
privileges, advantages and accommodations of the public accommodation, if
that individual poses a direct threat to the health or safety of others.  

 
     A "direct threat" is 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.  In School
Board of Nassau County v. Arline, 480 U.S. 273 (1987), the Supreme Court
recognized that there is a need to balance the interests of people with
disabilities against legitimate concerns for public safety.  Although
persons with disabilities are generally entitled to the protection of this
part, a person who poses a significant risk to others will not be
"qualified," if reasonable modifications to the public entity's policies,
practices, or procedures will not eliminate that risk.   
 

     The determination that a person poses a direct threat to the health or
safety of others may not be based on generalizations or stereotypes about
the effects of a particular disability.  It must be based on an
individualized assessment, based on reasonable judgment that relies on
current medical evidence or on the best available objective evidence, to
determine:  the nature, duration, and severity of the risk; the probability
that the potential injury will actually occur; and whether reasonable
modifications of policies, practices, or procedures will mitigate the risk. 
This is the test established by the Supreme Court in Arline.  Such an
inquiry is essential if the law is to achieve its goal of protecting
disabled individuals from discrimination based on prejudice, stereotypes,
or unfounded fear, while giving appropriate weight to legitimate concerns,
such as the need to avoid exposing others to significant health and safety
risks.  Making this assessment will not usually require the services of a
physician.  Sources for medical knowledge include guidance from public
health authorities, such as the U.S. Public Health Service, the Centers for
Disease Control, and the National Institutes of Health, including the
National Institute of Mental Health. 
 
     "Qualified interpreter."  The Department received substantial comment
regarding the lack of a definition of "qualified interpreter."  The proposed
rule defined auxiliary aids and services to include the statutory term,
"qualified interpreters" (35.104), but did not define it.  Section 35.160
requires the use of auxiliary aids including qualified interpreters and
commenters stated that a lack of guidance on what the term means would
create confusion among those trying to secure interpreting services and
often result in less than effective communication. 
 
     Many commenters were concerned that, without clear guidance on the
issue of "qualified" interpreter, the rule would be interpreted to mean
"available, rather than qualified" interpreters.  Some claimed that few
public entities would understand the difference between a qualified
interpreter and a person who simply knows a few signs or how to fingerspell.

 
     In order to clarify what is meant by "qualified interpreter" the
Department has added a definition of the term to the final rule.  A
qualified interpreter means an interpreter who is able to interpret
effectively, accurately, and impartially both receptively and expressively,
using any necessary specialized vocabulary.  This definition focuses on the
actual ability of the interpreter in a particular interpreting context to
facilitate effective communication between the public entity and the
individual with disabilities. 
 
     Public comment also revealed that public entities have at times asked
persons who are deaf to provide family members or friends to interpret.  In
certain circumstances, notwithstanding that the family member of friend is
able to interpret or is a certified interpreter, the family member or friend
may not be qualified to render the necessary interpretation because of
factors such as emotional or personal involvement or considerations of
confidentiality that may adversely affect the ability to interpret
"effectively, accurately, and impartially." 
 
     The definition of "qualified interpreter" in this rule does not
invalidate or limit standards for interpreting services of any State or
local law that are equal to or more stringent than those imposed by this
definition.  For instance, the definition would not supersede any
requirement of State law for use of a certified interpreter in court
proceedings. 
 
     "Section 504."  The Department added a definition of "section 504"
because the term is used extensively in subpart F of this part. 
 
     "State."  The definition of "State" is identical to the statutory
definition in section 3(3) of the ADA. 
 
35.105 Self-evaluation. 
     (a)  A public entity shall, within one year of the effective date of
this part, evaluate its current services, policies, and practices, and the
effects thereof, that do not or may not meet the requirements of this part
and, to the extent modification of any such services, policies, and
practices is required, the public entity shall proceed to make the necessary
modifications. 
 
     (b)  A public entity shall provide an opportunity to interested
persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
self-evaluation process by submitting comments. 
 
     (c)  A public entity that employs 50 or more persons shall, for at
least three years following completion of the self-evaluation, maintain on
file and make available for public inspection: 
 
     (1)  A list of the interested persons consulted; 
 
     (2)  A description of areas examined and any problems identified; and 
 
     (3)  A description of any modifications made. 
 
     (d)  If a public entity has already complied with the self-evaluation
requirement of a regulation implementing section 504 of the Rehabilitation
Act of 1973, then the requirements of this section shall apply only to those
policies and practices that were not included in the previous
self-evaluation. 

35.105 Self-evaluation. 
     Section 35.105 establishes a requirement, based on the section 504
regulations for federally assisted and federally conducted programs, that
a public entity evaluate its current policies and practices to identify and
correct any that are not consistent with the requirements of this part.  As
noted in the discussion of 35.102, activities covered by the Department of
Transportation's regulation implementing subtitle B of title II are not
required to be included in the self-evaluation required by this section.  

 
     Experience has demonstrated the self-evaluation process to be a
valuable means of establishing a working relationship with individuals with
disabilities, which has promoted both effective and efficient implementation
of section 504.  The Department expects that it will likewise be useful to
public entities newly covered by the ADA. 
 
     All public entities are required to do a self-evaluation.  However,
only those that employ 50 or more persons are required to maintain the
self-evaluation on file and make it available for public inspection for
three years.  The number 50 was derived from the Department of Justice's
section 504 regulations for federally assisted programs, 28 CFR 42.505(c). 
The Department received comments critical of this limitation, some
suggesting the requirement apply to all public entities and others
suggesting that the number be changed from 50 to 15.  The final rule has not
been changed.  Although many regulations implementing section 504 for
federally assisted programs do use 15 employees as the cut-off for this
record-keeping requirement, the Department believes that it would be
inappropriate to extend it to those smaller public entities covered by this
regulation that do not receive Federal financial assistance.  This approach
has the benefit of minimizing paperwork burdens on small entities. 
 
     Paragraph (d) provides that the self-evaluation required by this
section shall apply only to programs not subject to section 504 or those
policies and practices, such as those involving communications access, that
have not already been included in a self-evaluation required under an
existing regulation implementing section 504.  Because most self-evaluations
were done from five to twelve years ago, however, the Department expects
that a great many public entities will be reexamining all of their policies
and programs.  Programs and functions may have changed, and actions that
were supposed to have been taken to comply with section 504 may not have
been fully implemented or may no longer be effective.  In addition, there
have been statutory amendments to section 504 which have changed the
coverage of section 504, particularly the Civil Rights Restoration Act of
1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), which broadened the
definition of a covered "program or activity." 
 
     Several commenters suggested that the Department clarify public
entities' liability during the one-year period for compliance with the
self-evaluation requirement.  The self-evaluation requirement does not stay
the effective date of the statute nor of this part.  Public entities are,
therefore, not shielded from discrimination claims during that time. 
 
     Other commenters suggested that the rule require that every
self-evaluation include an examination of training efforts to assure that
individuals with disabilities are not subjected to discrimination because
of insensitivity, particularly in the law enforcement area.  Although the
Department has not added such a specific requirement to the rule, it would
be appropriate for public entities to evaluate training efforts because, in
many cases, lack of training leads to discriminatory practices, even when
the policies in place are nondiscriminatory. 
 
35.106 Notice. 
     A public entity shall make available to applicants, participants,
beneficiaries, and other interested persons information regarding the
provisions of this part and its applicability to the services, programs, or
activities of the public entity, and make such information available to them
in such manner as the head of the entity finds necessary to apprise such
persons of the protections against discrimination assured them by the Act
and this part. 
 
35.106 Notice. 
     Section 35.106 requires a public entity to disseminate sufficient
information to applicants, participants, beneficiaries, and other interested
persons to inform them of the rights and protections afforded by the ADA and
this regulation.  Methods of providing this information include, for
example, the publication of information in handbooks, manuals, and pamphlets
that are distributed to the public to describe a public entity's programs
and activities; the display of informative posters in service centers and
other public places; or the broadcast of information by television or radio. 
In providing the notice, a public entity must comply with the requirements
for effective communication in 35.160.  The preamble to that section gives
guidance on how to effectively communicate with individuals with
disabilities. 

35.107 Designation of responsible employee and adoption of grievance
procedures. 
     Consistent with 35.105, Self-evaluation, the final rule requires that
public entities with 50 or more employees designate a responsible employee
and adopt grievance procedures.  Most of the commenters who suggested that
the requirement that self-evaluation be maintained on file for three years
not be limited to those employing 50 or more persons made a similar
suggestion concerning 35.107.  Commenters recommended either that all public
entities be subject to section 35.107, or that "50 or more persons" be
changed to "15 or more persons."  As explained in the discussion of 35.105,
the Department has not adopted this suggestion. 
 
     The requirement for designation of an employee responsible for
coordination of efforts to carry out responsibilities under this part is
derived from the HEW regulation implementing section 504 in federally
assisted programs.  The requirement for designation of a particular employee
and dissemination of information about how to locate that employee helps to
ensure that individuals dealing with large agencies are able to easily find
a responsible person who is familiar with the requirements of the Act and
this part and can communicate those requirements to other individuals in the
agency who may be unaware of their responsibilities.  This paragraph in no
way limits a public entity's obligation to ensure that all of its employees
comply with the requirements of this part, but it ensures that any failure
by individual employees can be promptly corrected by the designated
employee. 
 
     Section 35.107(b) requires public entities with 50 or more employees
to establish grievance procedures for resolving complaints of violations of
this part.  Similar requirements are found in the section 504 regulations
for federally assisted programs (see, e.g., 45 CFR 84.7(b)).  The rule, like
the regulations for federally assisted programs, provides for investigation
and resolution of complaints by a Federal enforcement agency.  It is the
view of the Department that public entities subject to this part should be
required to establish a mechanism for resolution of complaints at the local
level without requiring the complainant to resort to the Federal complaint
procedures established under subpart F.  Complainants would not, however,
be required to exhaust the public entity's grievance procedures before
filing a complaint under subpart F.  Delay in filing the complaint at the
Federal level caused by pursuit of the remedies available under the
grievance procedure would generally be considered good cause for extending
the time allowed for filing under 35.170(b). 
 
Subpart B -- General Requirements 

35.107 Designation of responsible employee and adoption of grievance
procedures.  
     (a)  Designation of responsible employee.  A public entity that employs
50 or more persons shall designate at least one employee to coordinate its
efforts to comply with and carry out its responsibilities under this part,
including any investigation of any complaint communicated to it alleging its
noncompliance with this part or alleging any actions that would be
prohibited by this part.  The public entity shall make available to all
interested individuals the name, office address, and telephone number of the
employee or employees designated pursuant to this paragraph.  
 
     (b)  Complaint procedure.  A public entity that employs 50 or more
persons shall adopt and publish grievance procedures providing for prompt
and equitable resolution of complaints alleging any action that would be
prohibited by this part.  
 
Subpart B -- General Requirements 
 
35.130 General prohibitions against discrimination. 
     (a)  No qualified individual with a disability shall, on the basis of
disability, 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. 
 
     (b)(1)  A public entity, in providing any aid, benefit, or service, may
not, directly or through contractual, licensing, or other arrangements, on
the basis of disability -- 
 
     (i)  Deny a qualified individual with a disability the opportunity to
participate in or benefit from the aid, benefit, or service;  
 
     (ii)  Afford a qualified individual with a disability an opportunity
to participate in or benefit from the aid, benefit, or service that is not
equal to that afforded others; 
 
     (iii)  Provide a qualified individual with a disability with an aid,
benefit, or service that is not as effective in affording equal opportunity
to obtain the same result, to gain the same benefit, or to reach the same
level of achievement as that provided to others; 
     (iv)  Provide different or separate aids, benefits, or services to
individuals with disabilities or to any class of individuals with
disabilities than is provided to others unless such action is necessary to
provide qualified individuals with disabilities with aids, benefits, or
services that are as effective as those provided to others; 
 
     (v)  Aid or perpetuate discrimination against a qualified individual
with a disability by providing significant assistance to an agency,
organization, or person that discriminates on the basis of disability in
providing any aid, benefit, or service to beneficiaries of the public
entity's program;    
 
     (vi)  Deny a qualified individual with a disability the opportunity to
participate as a member of planning or advisory boards; 
 
     (vii)  Otherwise limit a qualified individual with a disability in the
enjoyment of any right, privilege, advantage, or opportunity enjoyed by
others receiving the aid, benefit, or service. 
 
     (2)  A public entity may not deny a qualified individual with a
disability the opportunity to participate in services, programs, or
activities that are not separate or different, despite the existence of
permissibly separate or different programs or activities. 
 
     (3)  A public entity may not, directly or through contractual or other
arrangements, utilize criteria or methods of administration: 
 
     (i)  That have the effect of subjecting qualified individuals with
disabilities to discrimination on the basis of disability; 
 
     (ii)  That have the purpose or effect of defeating or  
substantially impairing accomplishment of the objectives of the public
entity's program with respect to individuals with disabilities; or 
 
     (iii)  That perpetuate the discrimination of another public entity if
both public entities are subject to common administrative control or are
agencies of the same State.  		 	
 
     (4)  A public entity may not, in determining the site or location of
a facility, make selections -- 
 
     (i)  That have the effect of excluding individuals with disabilities
from, denying them the benefits of, or otherwise subjecting them to
discrimination; or  
 
     (ii)  That have the purpose or effect of defeating or substantially
impairing the accomplishment of the objectives of the service, program, or
activity with respect to individuals with disabilities.  
 
     (5)  A public entity, in the selection of procurement contractors, may
not use criteria that subject qualified individuals with disabilities to
discrimination on the basis of disability. 
 
     (6)  A public entity may not administer a licensing or certification
program in a manner that subjects qualified individuals with disabilities
to discrimination on the basis of disability, nor may a public entity
establish requirements for the programs or activities of licensees or
certified entities that subject qualified individuals with disabilities to
discrimination on the basis of disability.  The programs or activities of
entities that are licensed or certified by a public entity are not,
themselves, covered by this part. 
 
     (7)  A public entity shall make reasonable modifications in policies,
practices, or procedures when the modifications are necessary to avoid
discrimination on the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally alter the
nature of the service, program, or activity. 
 
     (8)  A public entity shall not impose or apply eligibility criteria
that screen out or tend to screen out an individual with a disability or any
class of individuals with disabilities from fully and equally enjoying any
service, program, or activity, unless such criteria can be shown to be
necessary for the provision of the service, program, or activity being
offered. 
 
     (c)  Nothing in this part prohibits a public entity from providing
benefits, services, or advantages to individuals with disabilities, or to
a particular class of individuals with disabilities beyond those required
by this part.  
 
     (d)  A public entity shall administer services, programs, and
activities in the most integrated setting appropriate to the needs of
qualified individuals with disabilities. 
 
     (e)(1)  Nothing in this part shall be construed to require an
individual with a disability to accept an accommodation, aid, service,
opportunity, or benefit provided under the ADA or this part which such
individual chooses not to accept.  
 
     (2)  Nothing in the Act or this part authorizes the representative or
guardian of an individual with a disability to decline food, water, medical
treatment, or medical services for that individual. 
 
     (f)  A public entity may not place a surcharge on a particular
individual with a disability or any group of individuals with disabilities
to cover the costs of measures, such as the provision of auxiliary aids or
program accessibility,  that are required to provide that individual or
group with the nondiscriminatory treatment required by the Act or this part. 
 
 
     (g) A public entity shall not exclude or otherwise deny equal services,
programs, or activities to an individual or entity because of the known
disability of an individual with whom the individual or entity is known to
have a relationship or association. 
 
     Many commenters objected to proposed paragraphs (b)(1)(iv) and (d) as
allowing continued segregation of individuals with disabilities.  The
Department recognizes that promoting integration of individuals with
disabilities into the mainstream of society is an important objective of the
ADA and agrees that, in most instances, separate programs for individuals
with disabilities will not be permitted.  Nevertheless, section 504 does
permit separate programs in limited circumstances, and Congress clearly
intended the regulations issued under title II to adopt the standards of
section 504.  Furthermore, Congress included authority for separate programs
in the specific requirements of title III of the Act.  Section
302(b)(1)(A)(iii) of the Act provides for separate benefits in language
similar to that in 35.130(b)(1)(iv), and section 302(b)(1)(B) includes the
same requirement for "the most integrated setting appropriate" as in
35.130(d). 
 
     Even when separate programs are permitted, individuals with
disabilities cannot be denied the opportunity to participate in programs
that are not separate or different.  This is an important and overarching
principle of the Americans with Disabilities Act.  Separate, special, or
different programs that are designed to provide a benefit to persons with
disabilities cannot be used to restrict the participation of persons with
disabilities in general, integrated activities. 
 
     For example, a person who is blind may wish to decline participating
in a special museum tour that allows persons to touch sculptures in an
exhibit and instead tour the exhibit at his or her own pace with the
museum's recorded tour.  It is not the intent of this section to require the
person who is blind to avail himself or herself of the special tour. 
Modified participation for persons with disabilities must be a choice, not
a requirement. 
 
     In addition, it would not be a violation of this section for a public
entity to offer recreational programs specially designed for children with
mobility impairments.  However, it would be a violation of this section if
the entity then excluded these children from other recreational services for
which they are qualified to participate when these services are made
available to nondisabled children, or if the entity required children with
disabilities to attend only designated programs.   
 
     Many commenters asked that the Department clarify a public entity's
obligations within the integrated program when it offers a separate program
but an individual with a disability chooses not to participate in the
separate program.  It is impossible to make a blanket statement as to what
level of auxiliary aids or modifications would be required in the integrated
program.  Rather, each situation must be assessed individually.  The
starting point is to question whether the separate program is in fact
necessary or appropriate for the individual.  Assuming the separate program
would be appropriate for a particular individual, the extent to which that
individual must be provided with modifications in the integrated program
will depend not only on what the individual needs but also on the
limitations and defenses of this part.  For example, it may constitute an
undue burden for a public accommodation, which provides a full-time
interpreter in its special guided tour for individuals with hearing
impairments, to hire an additional interpreter for those individuals who
choose to attend the integrated program.  The Department cannot identify
categorically the level of assistance or aid required in the integrated
program.   
 
     Paragraph (b)(1)(v) provides that a public entity may not aid or
perpetuate discrimination against a qualified individual with a disability
by providing significant assistance to an agency, organization, or person
that discriminates on the basis of disability in providing any aid, benefit,
or service to beneficiaries of the public entity's program.  This paragraph
is taken from the regulations implementing section 504 for federally
assisted programs. 
 
     Paragraph (b)(1)(vi) prohibits the public entity from denying a
qualified individual with a disability the opportunity to participate as a
member of a planning or advisory board. 
 
     Paragraph (b)(1)(vii) prohibits the public entity from limiting a
qualified individual with a disability in the enjoyment of any right,
privilege, advantage, or opportunity enjoyed by others receiving any aid,
benefit, or service. 
 
     Paragraph (b)(3) prohibits the public entity from utilizing criteria
or methods of administration that deny individuals with disabilities access
to the public entity's services, programs, and activities or that perpetuate
the discrimination of another public entity, if both public entities are
subject to common administrative control or are agencies of the same State. 
The phrase "criteria or methods of administration" refers to official
written policies of the public entity and to the actual practices of the
public entity.  This paragraph prohibits both blatantly exclusionary
policies or practices and nonessential policies and practices that are
neutral on their face, but deny individuals with disabilities an effective
opportunity to participate.  This standard is consistent with the
interpretation of section 504 by the U.S. Supreme Court in Alexander v.
Choate, 469 U.S. 287 (1985).  The Court in Choate explained that members of
Congress made numerous statements during passage of section 504 regarding
eliminating architectural barriers, providing access to transportation, and
eliminating discriminatory effects of job qualification procedures.  The
Court then noted:  "These statements would ring hollow if the resulting
legislation could not rectify the harms resulting from action that
discriminated by effect as well as by design."  Id. at 297 (footnote
omitted). 
 
     Paragraph (b)(4) specifically applies the prohibition enunciated in
35.130(b)(3) to the process of selecting sites for construction of new
facilities or selecting existing facilities to be used by the public entity. 
Paragraph (b)(4) does not apply to construction of additional buildings at
an existing site.  
 
     Paragraph (b)(5) prohibits the public entity, in the selection of
procurement contractors, from using criteria that subject qualified
individuals with disabilities to discrimination on the basis of disability. 
 
     Paragraph (b)(6) prohibits the public entity from discriminating
against qualified individuals with disabilities on the basis of disability
in the granting of licenses or certification.  A person is a "qualified
individual with a disability" with respect to licensing or certification if
he or she can meet the essential eligibility requirements for receiving the
license or certification (see 35.104). 

     A number of commenters were troubled by the phrase "essential
eligibility requirements" as applied to State licensing requirements,
especially those for health care professions.  Because of the variety of
types of programs to which the definition of "qualified individual with a
disability" applies, it is not possible to use more specific language in the
definition.  The phrase "essential eligibility requirements," however, is
taken from the definitions in the regulations implementing section 504, so
caselaw under section 504 will be applicable to its interpretation.  In
Southeastern Community College v. Davis, 442 U.S. 397, for example, the
Supreme Court held that section 504 does not require an institution to
"lower or effect substantial modifications of standards to accommodate a
handicapped person," 442 U.S. at 413, and that the school had established
that the plaintiff was not "qualified" because she was not able to "serve
the nursing profession in all customary ways," id.   Whether a particular
requirement is "essential" will, of course, depend on the facts of the
particular case. 
 
     In addition, the public entity may not establish requirements for the
programs or activities of licensees or certified entities that subject
qualified individuals with disabilities to discrimination on the basis of
disability.  For example, the public entity must comply with this
requirement when establishing safety standards for the operations of
licensees.  In that case the public entity must ensure that standards that
it promulgates do not discriminate against the employment of qualified
individuals with disabilities in an impermissible manner. 
 
     Paragraph (b)(6) does not extend the requirements of the Act or this
part directly to the programs or activities of licensees or certified
entities themselves.  The programs or activities of licensees or certified
entities are not themselves programs or activities of the public entity
merely by virtue of the license or certificate. 
 
     Paragraph (b)(7) is a specific application of the requirement under the
general prohibitions of discrimination that public entities make reasonable
modifications in policies, practices, or procedures where necessary to avoid
discrimination on the basis of disability.  Section 302(b)(2)(A)(ii) of the
ADA sets out this requirement specifically for public accommodations covered
by title III of the Act, and the House Judiciary Committee Report directs
the Attorney General to include those specific requirements in the title II
regulation to the extent that they do not conflict with the regulations
implementing section 504.  Judiciary report at 52. 
 
     Paragraph (b)(8), a new paragraph not contained in the proposed rule,
prohibits the imposition or application of eligibility criteria that screen
out or tend to screen out an individual with a disability or any class of
individuals with disabilities from fully and equally enjoying any service,
program, or activity, unless such criteria can be shown to be necessary for
the provision of the service, program, or activity being offered.  This
prohibition is also a specific application of the general prohibitions of
discrimination and is based on section 302(b)(2)(A)(i) of the ADA.  It
prohibits overt denials of equal treatment of individuals with disabilities,
or establishment of exclusive or segregative criteria that would bar
individuals with disabilities from participation in services, benefits, or
activities.  
 
     Paragraph (b)(8) also prohibits policies that unnecessarily impose
requirements or burdens on individuals with disabilities that are not placed
on others.  For example, public entities may not require that a qualified
individual with a disability be accompanied by an attendant.  A public
entity is not, however,  required to provide attendant care, or assistance
in toileting, eating, or dressing to individuals with disabilities, except
in special circumstances, such as where the individual is an inmate of a
custodial or correctional institution.   
 
      In addition, paragraph (b)(8) prohibits the imposition of criteria
that "tend to" screen out an individual with a disability.  This concept,
which is derived from current regulations under section 504 (see, e.g., 45
CFR 84.13), makes it discriminatory to impose policies or criteria that,
while not creating a direct bar to individuals with disabilities, indirectly
prevent or limit their ability to participate.  For example, requiring
presentation of a driver's license as the sole means of identification for
purposes of paying by check would violate this section in situations where,
for example, individuals with severe vision impairments or developmental
disabilities or epilepsy are ineligible to receive a driver's license and
the use of an alternative means of identification, such as another photo
I.D. or credit card, is feasible.   
 
     A public entity may, however, impose neutral rules and criteria that
screen out, or tend to screen out, individuals with disabilities if the
criteria are necessary for the safe operation of the program in question. 
Examples of safety qualifications that would be justifiable in appropriate
circumstances would include eligibility requirements for drivers' licenses,
or a requirement that all participants in a recreational rafting expedition
be able to meet a necessary level of swimming proficiency.  Safety
requirements must be based on actual risks and not on speculation,
stereotypes, or generalizations about individuals with disabilities. 

     Paragraph (c) provides that nothing in this part prohibits a public
entity from providing benefits, services, or advantages to individuals with
disabilities, or to a particular class of individuals with disabilities,
beyond those required by this part.  It is derived from a provision in the
section 504 regulations that permits programs conducted pursuant to Federal
statute or Executive order that are designed to benefit only individuals
with disabilities or a given class of individuals with disabilities to be
limited to those individuals with disabilities.  Section 504 ensures that
federally assisted programs are made available to all individuals, without
regard to disabilities, unless the Federal program under which the
assistance is provided is specifically limited to individuals with
disabilities or a particular class of individuals with disabilities. 
Because coverage under this part is not limited to federally assisted
programs, paragraph (c) has been revised to clarify that State and local
governments may provide special benefits, beyond those required by the
nondiscrimination requirements of this part, that are limited to individuals
with disabilities or a particular class of individuals with disabilities,
without thereby incurring additional obligations to persons without
disabilities or to other classes of individuals with disabilities.   
     Paragraphs (d) and (e), previously referred to in the discussion of
paragraph (b)(1)(iv), provide that the public entity must administer
services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities, i.e.,
in a setting that enables individuals with disabilities to interact with
nondisabled persons to the fullest extent possible, and that persons with
disabilities must be provided the option of declining to accept a particular
accommodation. 
 
     Some commenters expressed concern that 35.130(e), which states that
nothing in the rule requires an individual with a disability to accept
special accommodations and services provided under the ADA, could be
interpreted to allow guardians of infants or older people with disabilities
to refuse medical treatment for their wards.  Section 35.130(e) has been
revised to make it clear that paragraph (e) is inapplicable to the concern
of the commenters.  A new paragraph (e)(2) has been added stating that
nothing in the regulation authorizes the representative or guardian of an
individual with a disability to decline food, water, medical treatment, or
medical services for that individual.  New paragraph (e) clarifies that
neither the ADA nor the regulation alters current Federal law ensuring the
rights of incompetent individuals with disabilities to receive food, water,
and medical treatment.  See, e.g., Child Abuse Amendments of 1984 (42 U.S.C.
5106a(b)(10), 5106g(10)); Rehabilitation Act of 1973, as amended (29 U.S.C.
794); the Developmentally Disabled Assistance and Bill of Rights Act (42
U.S.C. 6042). 
 
     Sections 35.130(e)(1) and (2) are based on section 501(d) of the ADA. 
Section 501(d) was designed to clarify that nothing in the ADA requires
individuals with disabilities to accept special accommodations and services
for individuals with disabilities that may segregate them: 
 
     The Committee added this section [501(d)] to clarify that nothing in
the ADA is intended to permit discriminatory 
treatment on the basis of disability, even when such treatment is rendered
under the guise of providing an accommodation, service, aid or benefit to
the individual with disability.  For example, a blind individual may choose
not to avail himself or herself of the right to go to the front of a line,
even if a particular public accommodation has chosen to offer such a
modification of a policy for blind individuals.  Or, a blind individual may
choose to decline to participate in a special museum tour that allows
persons to touch sculptures in an exhibit and instead tour the exhibits at
his or her own pace with the museum's recorded tour. 
 
Judiciary report at 71-72.  The Act is not to be construed to mean that an
individual with disabilities must accept special accommodations and services
for individuals with disabilities when that individual can participate in
the regular services already offered.  Because medical treatment, including
treatment for particular conditions, is not a special accommodation or
service for individuals with disabilities under section 501(d), neither the
Act nor this part provides affirmative authority to suspend such treatment. 
Section 501(d) is intended to clarify that the Act is not designed to foster
discrimination through mandatory acceptance of special services when other
alternatives are provided; this concern does not reach to the provision of
medical treatment for the disabling condition itself. 

     Paragraph (f) provides that a public entity may not place a surcharge
on a particular individual with a disability, or any group of individuals
with disabilities, to cover any costs of measures required to provide that
individual or group with the nondiscriminatory treatment required by the Act
or this part.  Such measures may include the provision of auxiliary aids or
of modifications required to provide program accessibility. 
 
     Several commenters asked for clarification that the costs of
interpreter services may not be assessed as an element of "court costs." 
The Department has already recognized that imposition of the cost of
courtroom interpreter services is impermissible under section 504.  The
preamble to the Department's section 504 regulation for its federally
assisted programs states that where a court system has an obligation to
provide qualified interpreters, "it has the corresponding responsibility to
pay for the services of the interpreters."  (45 FR 37630 (June 3, 1980)). 
Accordingly, recouping the costs of interpreter services by assessing them
as part of court costs would also be prohibited. 
 
     Paragraph (g), which prohibits discrimination on the basis of an
individual's or entity's known relationship or association with an
individual with a disability, is based on sections 102(b)(4) and
302(b)(1)(E) of the ADA.  This paragraph was not contained in the proposed
rule.  The individuals covered under this paragraph are any individuals who
are discriminated against because of their known association with an
individual with a disability.  For example, it would be a violation of this
paragraph for a local government to refuse to allow a theater company to use
a school auditorium on the grounds that the company had recently performed
for an audience of individuals with HIV disease. 
 
     This protection is not limited to those who have a familial
relationship with the individual who has a disability.  Congress considered,
and rejected, amendments that would have limited the scope of this provision
to specific associations and relationships.  Therefore, if a public entity
refuses admission to a person with cerebral palsy and his or her companions,
the companions have an independent right of action under the ADA and this
section. 
 
     During the legislative process, the term "entity" was added to section
302(b)(l)(E) to clarify that the scope of the provision is intended to
encompass not only persons who have a known association with a person with
a disability, but also entities that provide services to or are otherwise
associated with such individuals.  This provision was intended to ensure
that entities such as health care providers, employees of social service
agencies, and others who provide professional services to persons with
disabilities are not subjected to discrimination because of their
professional association with persons with disabilities. 

 35.130 General prohibitions against discrimination. 
     The general prohibitions against discrimination in the rule are
generally based on the prohibitions in existing regulations implementing
section 504 and, therefore, are already familiar to State and local entities
covered by section 504.   In addition, 35.130 includes a number of
provisions derived from title III of the Act that are implicit to a certain
degree in the requirements of regulations implementing section 504. 
 
     Several commenters suggested that this part should include the section
of the proposed title III regulation that implemented section 309 of the
Act, which requires that courses and examinations related to applications,
licensing, certification, or credentialing be provided in an accessible
place and manner or that alternative accessible arrangements be made.  The
Department has not adopted this suggestion.  The requirements of this part,
including the general prohibitions of discrimination in this section, the
program access requirements of subpart D, and the communications
requirements of subpart E, apply to courses and examinations provided by
public entities.  The Department considers these requirements to be
sufficient to ensure that courses and examinations administered by public
entities meet the requirements of section 309.  For example, a public entity
offering an examination must ensure that modifications of policies,
practices, or procedures or the provision of auxiliary aids and services
furnish the individual with a disability an equal opportunity to demonstrate
his or her knowledge or ability.  Also, any examination specially designed
for individuals with disabilities must be offered as often and in as timely
a manner as are other examinations.  Further, under this part, courses and
examinations must be offered in the most integrated setting appropriate. 
The analysis of 35.130(d) is relevant to this determination. 
 
     A number of commenters asked that the regulation be amended to require
training of law enforcement personnel to recognize the difference between
criminal activity and the effects of seizures or other disabilities such as
mental retardation, cerebral palsy, traumatic brain injury, mental illness,
or deafness.  Several disabled commenters gave personal statements about the
abuse they had received at the hands of law enforcement personnel.  Two
organizations that commented cited the Judiciary report at 50 as authority
to require law enforcement training. 
 
     The Department has not added such a training requirement to the
regulation.  Discriminatory arrests and brutal treatment are already
unlawful police activities.  The general regulatory obligation to modify
policies, practices, or procedures requires law enforcement to make changes
in policies that result in discriminatory arrests or abuse of individuals
with disabilities.  Under this section law enforcement personnel would be
required to make appropriate efforts to determine whether perceived strange
or disruptive behavior or unconsciousness is the result of a disability. 
The Department notes that a number of States have attempted to address the
problem of arresting disabled persons for noncriminal conduct resulting from
their disability through adoption of the Uniform Duties to Disabled Persons
Act, and encourages other jurisdictions to consider that approach. 
 
     Paragraph (a) restates the nondiscrimination mandate of section 202 of
the ADA.  The remaining paragraphs in 35.130 establish the general
principles for analyzing whether any particular action of the public entity
violates this mandate. 

     Paragraph (b) prohibits overt denials of equal treatment of individuals
with disabilities.  A public entity may not refuse to provide an individual
with a disability with an equal opportunity to participate in or benefit
from its program simply because the person has a disability.   
 
     Paragraph (b)(1)(i) provides that it is discriminatory to deny a person
with a disability the right to participate in or benefit from the aid,
benefit, or service provided by a public entity.  Paragraph (b)(1)(ii)
provides that the aids, benefits, and services provided to persons with
disabilities must be equal to those provided to others, and paragraph
(b)(1)(iii) requires that the aids, benefits, or services provided to
individuals with disabilities must be as effective in affording equal
opportunity to obtain the same result, to gain the same benefit, or to reach
the same level of achievement as those provided to others.  These paragraphs
are taken from the regulations implementing section 504 and simply restate
principles long established under section 504. 
 
     Paragraph (b)(1)(iv) permits the public entity to develop separate or
different aids, benefits, or services when necessary to provide individuals
with disabilities with an equal opportunity to participate in or benefit
from the public entity's programs or activities, but only when necessary to
ensure that the aids, benefits, or services are as effective as those
provided to others.  Paragraph (b)(1)(iv) must be read in conjunction with
paragraphs (b)(2), (d), and (e).  Even when separate or different aids,
benefits, or services would be more effective, paragraph (b)(2) provides
that a qualified individual with a disability still has the right to choose
to participate in the program that is not designed to accommodate
individuals with disabilities.  Paragraph (d) requires that a public entity
administer services, programs, and activities in the most integrated setting
appropriate to the needs of qualified individuals with disabilities. 
 
     Paragraph (b)(2) specifies that, notwithstanding the existence of
separate or different programs or activities provided in accordance with
this section, an individual with a disability shall not be denied the
opportunity to participate in such programs or activities that are not
separate or different.  Paragraph (e), which is derived from section 501(d)
of the Americans with Disabilities Act, states that nothing in this part
shall be construed to require an individual with a disability to accept an
accommodation, aid, service, opportunity, or benefit that he or she chooses
not to accept.   
 
     Taken together, these provisions are intended to prohibit exclusion and
segregation of individuals with disabilities and the denial of equal
opportunities enjoyed by others, based on, among other things, presumptions,
patronizing attitudes, fears, and stereotypes about individuals with
disabilities.  Consistent with these standards, public entities are required
to ensure that their actions are based on facts applicable to individuals
and not on presumptions as to what a class of individuals with disabilities
can or cannot do.  
 
     Integration is fundamental to the purposes of the Americans with
Disabilities Act.  Provision of segregated accommodations and services
relegates persons with disabilities to second-class status.  For example,
it would be a violation of this provision to require persons with
disabilities to eat in the back room of a government cafeteria or to refuse
to allow a person with a disability the full use of recreation or exercise
facilities because of stereotypes about the person's ability to participate. 
 

 35.131 Illegal use of drugs. 
     (a)  General.  (1) Except as provided in paragraph (b) of this section,
this part does not prohibit discrimination against an individual based on
that individual's current illegal use of drugs.   
 
     (2)  A public entity shall not discriminate on the basis of illegal use
of drugs against an individual who is not engaging in current illegal use
of drugs and who-- 
 
     (i)  Has successfully completed a supervised drug rehabilitation
program or has otherwise been rehabilitated successfully; 
 
     (ii)  Is participating in a supervised rehabilitation program; or 
 
     (iii)  Is erroneously regarded as engaging in such use. 
 
     (b)  Health and drug rehabilitation services.  (1)  A public entity
shall not deny health services, or services provided in connection with drug
rehabilitation, to an individual on the basis of that individual's current
illegal use of drugs, if the individual is otherwise entitled to such
services. 
 
     (2)  A drug rehabilitation or treatment program may deny participation
to individuals who engage in illegal use of drugs while they are in the
program. 
 
     (c)  Drug testing.  (1) This part does not prohibit a public entity
from adopting or administering reasonable policies or procedures, including
but not limited to drug testing, designed to ensure that an individual who
formerly engaged in the illegal use of drugs is not now engaging in current
illegal use of drugs. 
 
     (2) Nothing in paragraph (c) of this section shall be construed to
encourage, prohibit, restrict, or authorize the conduct of testing for the
illegal use of drugs. 
 
35.131 Illegal use of drugs. 
     Section 35.131 effectuates section 510 of the ADA, which clarifies the
Act's application to people who use drugs illegally.  Paragraph (a) provides
that this part does not prohibit discrimination based on an individual's
current illegal use of drugs.  
 
     The Act and the regulation distinguish between illegal use of drugs and
the legal use of substances, whether or not those substances are "controlled
substances," as defined in the Controlled Substances Act (21 U.S.C. 812). 
Some controlled substances are prescription drugs that have legitimate
medical uses.  Section 35.131 does not affect use of controlled substances
pursuant to a valid prescription under supervision by a licensed health care
professional, or other use that is authorized by the Controlled Substances
Act or any other provision of Federal law.  It does apply to illegal use of
those substances, as well as to illegal use of controlled substances that
are not prescription drugs.  The key question is whether the individual's
use of the substance is illegal, not whether the substance has recognized
legal uses.  Alcohol is not a controlled substance, so use of alcohol is not
addressed by 35.131 (although alcoholics are individuals with disabilities,
subject to the protections of the statute).     
 
     A distinction is also made between the use of a substance and the
status of being addicted to that substance.  Addiction is a disability, and
addicts are individuals with disabilities protected by the Act.  The
protection, however, does not extend to actions based on the illegal use of
the substance.  In other words, an addict cannot use the fact of his or her
addiction as a defense to an action based on illegal use of drugs.  This
distinction is not artificial.  Congress intended to deny protection to
people who engage in the illegal use of drugs, whether or not they are
addicted, but to provide protection to addicts so long as they are not
currently using drugs. 
 
     A third distinction is the difficult one between current use and former
use.  The definition of "current illegal use of drugs" in 35.104, which is
based on the report of the Conference Committee, H.R. Conf. Rep. No. 596,
101st Cong., 2d Sess. 64 (1990) [hereinafter "Conference report"], is
"illegal use of drugs that occurred recently enough to justify a reasonable
belief that a person's drug use is current or that continuing use is a real
and ongoing problem." 
     Paragraph (a)(2)(i) specifies that an individual who has successfully
completed a supervised drug rehabilitation program or has otherwise been
rehabilitated successfully and who is not engaging in current illegal use
of drugs is protected.   Paragraph (a)(2)(ii) clarifies that an individual
who is currently participating in a supervised rehabilitation program and
is not engaging in current illegal use of drugs is protected.  Paragraph
(a)(2)(iii) provides that a person who is erroneously regarded as engaging
in current illegal use of drugs, but who is not engaging in such use, is
protected.   
 
     Paragraph (b) provides a limited exception to the exclusion of current
illegal users of drugs from the protections of the Act.  It prohibits denial
of health services, or services provided in connection with drug
rehabilitation to an individual on the basis of current illegal use of
drugs, if the individual is otherwise entitled to such services.  A health
care facility, such as a hospital or clinic, may not refuse treatment to an
individual in need of the services it provides on the grounds that the
individual is illegally using drugs, but it is not required by this section
to provide services that it does not ordinarily provide.  For example, a
health care facility that specializes in a particular type of treatment,
such as care of burn victims, is not required to provide drug rehabilitation
services, but it cannot refuse to treat a individual's burns on the grounds
that the individual is illegally using drugs.       
 
     Some commenters pointed out that abstention from the use of drugs is
an essential condition of participation in some drug rehabilitation
programs, and may be a necessary requirement in inpatient or residential
settings.  The Department believes that this comment is well-founded. 
Congress clearly intended to prohibit exclusion from drug treatment programs
of the very individuals who need such programs because of their use of
drugs, but, once an individual has been admitted to a program, abstention
may be a necessary and appropriate condition to continued participation. 
The final rule therefore provides that a drug rehabilitation or treatment
program may prohibit illegal use of drugs by individuals while they are
participating in the program. 
 
     Paragraph (c) expresses Congress' intention that the Act be neutral
with respect to testing for illegal use of drugs.  This paragraph implements
the provision in section 510(b) of the Act that allows entities "to adopt
or administer reasonable policies or procedures, including but not limited
to drug testing," that ensure that an individual who is participating in a
supervised rehabilitation program, or who has completed such a program or
otherwise been rehabilitated successfully is no longer engaging in the
illegal use of drugs.  The section is not to be "construed to encourage,
prohibit, restrict, or authorize the conducting of testing for the illegal
use of drugs."   
 
     Paragraph 35.131(c) clarifies that it is not a violation of this part
to adopt or administer reasonable policies or procedures to ensure that an
individual who formerly engaged in the illegal use of drugs is not currently
engaging in illegal use of drugs.  Any such policies or procedures must, of
course, be reasonable, and must be designed to identify accurately the
illegal use of drugs.  This paragraph does not authorize inquiries, tests,
or other procedures that would disclose use of substances that are not
controlled substances or are taken under supervision by a licensed health
care professional, or other uses authorized by the Controlled Substances Act
or other provisions of Federal law, because such uses are not included in
the definition of "illegal use of drugs."  A commenter argued that the rule
should permit testing for lawful use of prescription drugs, but most
commenters preferred that tests must be limited to unlawful use in order to
avoid revealing the lawful use of prescription medicine used to treat
disabilities.   

35.132  Smoking. 
     This part does not preclude the prohibition of, or the imposition of
restrictions on, smoking in transportation covered by this part. 

35.132 Smoking. 
     Section 35.132 restates the clarification in section 501(b) of the Act
that the Act does not preclude the prohibition of, or imposition of
restrictions on, smoking in transportation covered by title II.  Some
commenters argued that this section is too limited in scope, and that the
regulation should prohibit smoking in all facilities used by public
entities.  The reference to smoking in section 501, however, merely
clarifies that the Act does not require public entities to accommodate
smokers by permitting them to smoke in transportation facilities. 
 
35.133 Maintenance of accessible features. 
     (a)  A public accommodation shall maintain in operable working
condition those features of facilities and equipment that are required to
be readily accessible to and usable by persons with disabilities by the Act
or this part. 
 
     (b)  This section does not prohibit isolated or temporary interruptions
in service or access due to maintenance or repairs. 

35.133 Maintenance of accessible features. 
     Section 35.133 provides that a public entity shall maintain in operable
working condition those features of facilities and equipment that are
required to be readily accessible to and usable by persons with disabilities
by the Act or this part.  The Act requires that, to the maximum extent
feasible, facilities must be accessible to, and usable by, individuals with
disabilities.  This section recognizes that it is not sufficient to provide
features such as accessible routes, elevators, or ramps, if those features
are not maintained in a manner that enables individuals with disabilities
to use them.  Inoperable elevators, locked accessible doors, or "accessible"
routes that are obstructed by furniture, filing cabinets, or potted plants
are neither "accessible to" nor "usable by" individuals with disabilities. 
 
     Some commenters objected that this section appeared to establish an
absolute requirement and suggested that language from the preamble be
included in the text of the regulation.  It is, of course, impossible to
guarantee that mechanical devices will never fail to operate.  Paragraph (b)
of the final regulation provides that this section does not prohibit
isolated or temporary interruptions in service or access due to maintenance
or repairs.  This paragraph is intended to clarify that temporary
obstructions or isolated instances of mechanical failure would not be
considered violations of the Act or this part.  However, allowing
obstructions or "out of service" equipment to persist beyond a reasonable
period of time would violate this part, as would repeated mechanical
failures due to improper or inadequate maintenance.  Failure of the public
entity to ensure that accessible routes are properly maintained and free of
obstructions, or failure to arrange prompt repair of inoperable elevators
or other equipment intended to provide access would also violate this part. 
 
     Other commenters requested that this section be expanded to include
specific requirements for inspection and maintenance of equipment, for
training staff in the proper operation of equipment, and for maintenance of
specific items.  The Department believes that this section properly
establishes the general requirement for maintaining access and that further
details are not necessary.   

35.134 Retaliation or coercion.  
     (a)  No private or public entity shall discriminate against any
individual because that individual has opposed any act or practice made
unlawful by this part, or because that individual made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing under the Act or this part. 
 
     (b)  No private or public entity shall coerce, intimidate, threaten,
or interfere with any individual in the exercise or enjoyment of, or on
account of his or her having exercised or enjoyed, or on account of his or
her having aided or encouraged any other individual in the exercise or
enjoyment of, any right granted or protected by the Act or this part. 
 

35.134 Retaliation or coercion. 
     Section 35.134 implements section 503 of the ADA, which prohibits
retaliation against any individual who exercises his or her rights under the
Act.  This section is unchanged from the proposed rule.  Paragraph (a) of
35.134 provides that no private or public entity shall discriminate against
any individual because that individual has exercised his or her right to
oppose any act or practice made unlawful by this part, or because that
individual made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing under the Act or this part. 
 
     Paragraph (b) provides that no private or public entity shall coerce,
intimidate, threaten, or interfere with any individual in the exercise of
his or her rights under this part or because that individual aided or
encouraged any other individual in the exercise or enjoyment of any right
granted or protected by the Act or this part. 
 
     This section protects not only individuals who allege a violation of
the Act or this part, but also any individuals who support or assist them. 
This section applies to all investigations or proceedings initiated under
the Act or this part without regard to the ultimate resolution of the
underlying allegations.  Because this section prohibits any act of
retaliation or coercion in response to an individual's effort to exercise
rights established by the Act and this part (or to support the efforts of
another individual), the section applies not only to public entities subject
to this part, but also to persons acting in an individual capacity or to
private entities.  For example, it would be a violation of the Act and this
part for a private individual to harass or intimidate an individual with a
disability in an effort to prevent that individual from attending a concert
in a State-owned park.  It would, likewise, be a violation of the Act and
this part for a private entity to take adverse action against an employee
who appeared as a witness on behalf of an individual who sought to enforce
the Act. 

35.135   Personal devices and services. 
     This part does not require a public entity to provide to individuals
with disabilities personal devices, such as wheelchairs; individually
prescribed devices, such as prescription eyeglasses or hearing aids; readers
for personal use or study; or services of a personal nature including
assistance in eating, toileting, or dressing. 

35.135   Personal devices and services. 
     The final rule includes a new 35.135, entitles "Personal devices and
services," which states that the provision of personal devices and services
is not required by title II.  This new section, which serves as a limitation
on all of the requirements of the regulation, replaces 35.160(b)(2) of the
proposed rule, which addressed the issue of personal devices and services
explicitly only in the context of communications.  The personal devices and
services limitation was intended to have general application in the proposed
rule in all contexts where it was relevant.  The final rule, therefore,
clarifies this point by including a general provision that will explicitly
apply not only to auxiliary aids and services but across-the-board to
include other relevant areas such as, for example, modifications in
policies, practices, and procedures (35.130(b)(7)).  The language of 35.135
parallels an analogous provision in the Department's title III regulations
(28 CFR 36.306) but preserves the explicit reference to "readers for
personal use or study" in 35.160(b)(2) of the proposed rule.  This section
does not preclude the short-term loan of personal receivers that are part
of an assistive listening system. 

35.136-35.139 [Reserved] 
 
Subpart C -- Employment 
 
35.140 Employment discrimination prohibited. 
     (a) No qualified individual with a disability shall, on the basis of
disability, be subjected to discrimination in employment under any service,
program, or activity conducted by a public entity. 
 
     (b)(1)  For purposes of this part, the requirements of title I of the
Act, as established by the regulations of the Equal Employment Opportunity
Commission in 29 CFR part 1630, apply to employment in any service, program,
or activity conducted by a public entity if that public entity is also
subject to the jurisdiction of title I. 
 
     (2)  For the purposes of this part, the requirements of section 504 of
the Rehabilitation Act of 1973, as established by the regulations of the
Department of Justice in 28 CFR part 41, as those requirements pertain to
employment, apply to employment in any service, program, or activity
conducted by a public entity if that public entity is not also subject to
the jurisdiction of title I. 
 
Subpart C -- Employment 
 
35.140 Employment discrimination prohibited. 
     Title II of the ADA applies to all activities of public entities,
including their employment practices.  The proposed rule cross-referenced
the definitions, requirements, and procedures of title I of the ADA, as
established by the Equal Employment Opportunity Commission in 29 CFR Part
1630.  This proposal would have resulted in use, under 35.140, of the title
I definition of "employer," so that a public entity with 25 or more
employees would have become subject to the requirements of 35.140 on July
26, 1992, one with 15 to 24 employees on July 26, 1994, and one with fewer
than 15 employees would have been excluded completely. 
 
     The Department received comments objecting to this approach.  The
commenters asserted that Congress intended to establish nondiscrimination
requirements for employment by all public entities, including those that
employ fewer than 15 employees; and that Congress intended the employment
requirements of title II to become effective at the same time that the other
requirements of this regulation become effective, January 26, 1992.  The
Department has reexamined the statutory language and legislative history of
the ADA on this issue and has concluded that Congress intended to cover the
employment practices of all public entities and that the applicable
effective date is that of title II. 
 
     The statutory language of section 204(b) of the ADA requires the
Department to issue a regulation that is consistent with the ADA and the
Department's coordination regulation under section 504, 28 CFR part 41.  The
coordination regulation specifically requires nondiscrimination in
employment, 28 CFR 41.52-41.55, and does not limit coverage based on size
of employer.  Moreover, under all section 504 implementing regulations
issued in accordance with the Department's coordination regulation,
employment coverage under section 504 extends to all employers with
federally assisted programs or activities, regardless of size, and the
effective date for those employment requirements has always been the same
as the effective date for nonemployment requirements established in the same
regulations.  The Department therefore concludes that 35.140 must apply to
all public entities upon the effective date of this regulation. 

     In the proposed regulation the Department cross-referenced the
regulations implementing title I of the ADA, issued by the Equal Employment
Opportunity Commission at 29 CFR part 1630, as a compliance standard for
35.140 because, as proposed, the scope of coverage and effective date of
coverage under title II would have been coextensive with title I.  In the
final regulation this language is modified slightly.  Subparagraph (1) of
new paragraph (b) makes it clear that the standards established by the Equal
Employment Opportunity Commission in 29 CFR part 1630 will be the applicable
compliance standards if the public entity is subject to title I.  If the
public entity is not covered by title I, or until it is covered by title I,
subparagraph (b)(2) cross-references section 504 standards for what
constitutes employment discrimination, as established by the Department of
Justice in 28 CFR part 41.  Standards for title I of the ADA and section 504
of the Rehabilitation Act are for the most part identical because title I
of the ADA was based on requirements set forth in regulations implementing
section 504. 
 
     The Department, together with the other Federal agencies responsible
for the enforcement of Federal laws prohibiting employment discrimination
on the basis of disability, recognizes the potential for jurisdictional
overlap that exists with respect to coverage of public entities and the need
to avoid problems related to overlapping coverage.  The other Federal
agencies include the Equal Employment Opportunity Commission, which is the
agency primarily responsible for enforcement of title I of the ADA, the
Department of Labor, which is the agency responsible for enforcement of
section 503 of the Rehabilitation Act of 1973, and 26 Federal agencies with
programs of Federal financial assistance, which are responsible for
enforcing section 504 in those programs.  Section 107 of the ADA requires
that coordination mechanisms be developed in connection with the
administrative enforcement of complaints alleging discrimination under title
I and complaints alleging discrimination in employment in violation of the
Rehabilitation Act.  Although the ADA does not specifically require
inclusion of employment complaints under title II in the coordinating
mechanisms required by title I, Federal investigations of title II
employment complaints will be coordinated on a government-wide basis also. 
The Department is currently working with the EEOC and other affected Federal
agencies to develop effective coordinating mechanisms, and final regulations
on this issue will be issued on or before January 26, 1992.       
 
35.141-35.148 [Reserved]  
 
Subpart D -- Program Accessibility 
 
35.149 Discrimination prohibited. 
     Except as otherwise provided in 35.150, no qualified individual with
a disability shall, because a public entity's facilities are 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. 

Subpart D -- Program Accessibility 
 
35.149 Discrimination prohibited.  
     Section 35.149 states the general nondiscrimination principle
underlying the program accessibility requirements of    35.150 and 35.151. 
 
35.150 Existing facilities. 
     (a)  General.  A public entity shall operate each service, program, or
activity so that the service, program, or activity, when viewed in its
entirety, is readily accessible to and usable by individuals with
disabilities.  This paragraph does not -- 
 
     (1)  Necessarily require a public entity to make each of its existing
facilities accessible to and usable by individuals with disabilities; 
 
     (2)  Require a public entity to take any action that would threaten or
destroy the historic significance of an historic property; or 
 
     (3)  Require a public entity to take any action that it can demonstrate
would result in a fundamental alteration in the nature of a service,
program, or activity or in undue financial and administrative burdens.  In
those circumstances where personnel of the public entity believe that the
proposed action would fundamentally alter the service, program, or activity
or would result in undue financial and administrative burdens, a public
entity has the burden of proving that compliance with 35.150(a) of this part
would result in such alteration or burdens.  The decision that compliance
would result in such alteration or burdens must be made by the head of a
public entity or his or her designee after considering all resources
available for use in the funding and operation of the service, program, or
activity, and must be accompanied by a written statement of the reasons for
reaching that conclusion.  If an action would result in such an alteration
or such burdens, a public entity shall take any other action that would not
result in such an alteration or such burdens but would nevertheless ensure
that individuals with disabilities receive the benefits or services provided
by the public entity. 
 
     (b)  Methods.  (1)  General.  A public entity may comply with the
requirements of this section through such means as redesign of equipment,
reassignment of services to accessible buildings, assignment of aides to
beneficiaries, home visits, delivery of services at alternate accessible
sites, alteration of existing facilities and construction of new facilities,
use of accessible rolling stock or other conveyances, or any other methods
that result in making its services, programs, or activities readily
accessible to and usable by individuals with disabilities.  A public entity
is not required to make structural changes in existing facilities where
other methods are effective in achieving compliance with this section.  A
public entity, in making alterations to existing buildings, shall meet the 
accessibility requirements of 35.151.  In choosing among available methods
for meeting the requirements of this section, a public entity shall give
priority to those methods that offer services, programs, and activities to
qualified individuals with disabilities in the most integrated setting
appropriate. 
 
     (2)  Historic preservation programs.  In meeting the requirements of
35.150(a) in historic preservation programs, a  public entity shall give
priority to methods that provide physical access to individuals with
disabilities.  In cases where a physical alteration to an historic property
is not required because of paragraph (a)(2) or (a)(3) of this section,
alternative methods of achieving program accessibility include -- 
 
     (i)  Using audio-visual materials and devices to depict those portions
of an historic property that cannot otherwise be made accessible; 
 
     (ii) Assigning persons to guide individuals with handicaps into or
through portions of historic properties that cannot otherwise be made
accessible; or 
 
     (iii) Adopting other innovative methods. 
 
     (c)  Time period for compliance.   Where structural changes in
facilities are undertaken to comply with the obligations established under
this section, such changes shall be made within three years of January 26,
1992, but in any event as expeditiously as possible. 
 
     (d)  Transition plan.  (1)  In the event that structural changes to
facilities will be undertaken to achieve program accessibility, a public
entity that employs 50 or more persons shall develop, within six months of
January 26, 1992, a transition plan setting forth the steps necessary to
complete such changes.  A public entity shall provide an opportunity to
interested persons, including individuals with disabilities or organizations
representing individuals with disabilities, to participate in the
development of the transition plan by submitting comments.  A copy of the
transition plan shall be made available for public inspection.   
 
     (2)  If a public entity has responsibility or authority over streets,
roads, or walkways, its transition plan shall include a schedule for
providing curb ramps or other sloped areas where pedestrian walks cross
curbs, giving priority to walkways serving entities covered by the Act,
including State and local government offices and facilities, transportation,
places of public accommodation, and employers, followed by walkways serving
other areas. 
 
     (3)  The plan shall, at a minimum -- 
 
     (i)  Identify physical obstacles in the public entity's facilities that
limit the accessibility of its programs or activities to individuals with
disabilities; 
 
     (ii)  Describe in detail the methods that will be used to make the
facilities accessible; 
 
     (iii)  Specify the schedule for taking the steps necessary to achieve
compliance with this section and, if the time period of the transition plan
is longer than one year, identify steps that will be taken during each year
of the transition period; and  
      
     (iv)  Indicate the official responsible for implementation of the plan.

 
     (4)  If a public entity has already complied with the transition plan
requirement of a Federal agency regulation implementing section 504 of the
Rehabilitation Act of 1973, then the requirements of this paragraph (d)
shall apply only to those policies and practices that were not included in
the previous transition plan. 

35.150 Existing facilities. 
     Consistent with section 204(b) of the Act, this regulation adopts the
program accessibility concept found in the section 504 regulations for
federally conducted programs or activities (e.g., 28 CFR Part 39).  The
concept of "program accessibility" was first used in the section 504
regulation adopted by the Department of Health, Education, and Welfare for
its federally assisted programs and activities in 1977.  It allowed
recipients to make their federally assisted programs and activities
available to individuals with disabilities without extensive retrofitting
of their existing buildings and facilities, by offering those programs
through alternative methods.  Program accessibility has proven to be a
useful approach and was adopted in the regulations issued for programs and
activities conducted by Federal Executive agencies.  The Act provides that
the concept of program access will continue to apply with respect to
facilities now in existence, because the cost of retrofitting existing
facilities is often prohibitive.   
 
     Section 35.150 requires that each service, program, or activity
conducted by a public entity, when viewed in its entirety, be readily
accessible to and usable by individuals with disabilities.  The regulation
makes clear, however, that a public entity is not required to make each of
its existing facilities accessible (35.150(a)(1)).  Unlike title III of the
Act, which requires public accommodations to remove architectural barriers
where such removal is "readily achievable," or to provide goods and services
through alternative methods, where those methods are "readily achievable,"
title II requires a public entity to make its programs accessible in all
cases, except where to do so would result in a fundamental alteration in the
nature of the program or in undue financial and administrative burdens. 
Congress intended the "undue burden" standard in title II to be
significantly higher than the "readily achievable" standard in title III. 
Thus, although title II may not require removal of barriers in some cases
where removal would be required under title III, the program access
requirement of title II should enable individuals with disabilities to
participate in and benefit from the services, programs, or activities of
public entities in all but the most unusual cases.   
 
     Paragraph (a)(2), which establishes a special limitation on the
obligation to ensure program accessibility in historic preservation
programs, is discussed below in connection with paragraph (b).   

     Paragraph (a)(3), which is taken from the section 504 regulations for
federally conducted programs, generally codifies case law that defines the
scope of the public entity's obligation to ensure program accessibility. 
This paragraph provides that, in meeting the program accessibility
requirement, a public entity is not required to take any action that would
result in a fundamental alteration in the nature of its service, program,
or activity or in undue financial and administrative burdens.  A similar
limitation is provided in 35.164. 
 
     This paragraph does not establish an absolute defense; it does not
relieve a public entity of all obligations to individuals with disabilities. 
Although a public entity is not required to take actions that would result
in a fundamental alteration in the nature of a service, program, or activity
or in undue financial and administrative burdens, it nevertheless must take
any other steps necessary to ensure that individuals with disabilities
receive the benefits or services provided by the public entity. 
 
     It is the Department's view that compliance with 35.150(a), like
compliance with the corresponding provisions of the section 504 regulations
for federally conducted programs, would in most cases not result in undue
financial and administrative burdens on a public entity.  In determining
whether financial and administrative burdens are undue, all public entity
resources available for use in the funding and operation of the service,
program, or activity should be considered.  The burden of proving that
compliance with paragraph (a) of 35.150 would fundamentally alter the nature
of a service, program, or activity or would result in undue financial and
administrative burdens rests with the public entity.   
 
     The decision that compliance would result in such alteration or burdens
must be made by the head of the public entity or his or her designee and
must be accompanied by a written statement of the reasons for reaching that
conclusion.  The Department recognizes the difficulty of identifying the
official responsible for this determination, given the variety of
organizational forms that may be taken by public entities and their
components.  The intention of this paragraph is that the determination must
be made by a high level official, no lower than a Department head, having
budgetary authority and responsibility for making spending decisions.   
 
     Any person who believes that he or she or any specific class of persons
has been injured by the public entity head's decision or failure to make a
decision may file a complaint under the compliance procedures established
in subpart F. 
 
     Paragraph (b)(1) sets forth a number of means by which program
accessibility may be achieved, including redesign of equipment, reassignment
of services to accessible buildings, and provision of aides. 
 
     The Department wishes to clarify that, consistent with longstanding
interpretation of section 504, carrying an individual with a disability is
considered an ineffective and therefore an unacceptable method for achieving
program accessibility.  Department of Health, Education, and Welfare, Office
of Civil Rights, Policy Interpretation No. 4, 43 Fed. Reg. 36035 (August 14,
1978).  Carrying will be permitted only in manifestly exceptional cases, and
only if all personnel who are permitted to participate in carrying an
individual with a disability are formally instructed on the safest and least
humiliating means of carrying.  "Manifestly exceptional" cases in which
carrying would be permitted might include, for example, programs conducted
in unique facilities, such as an oceanographic vessel, for which structural
changes and devices necessary to adapt the facility for use by individuals
with mobility impairments are unavailable or prohibitively expensive. 
Carrying is not permitted as an alternative to structural modifications such
as installation of a ramp or a chairlift.   

     In choosing among methods, the public entity shall give priority
consideration to those that will be consistent with provision of services
in the most integrated setting appropriate to the needs of individuals with
disabilities.  Structural changes in existing facilities are required only
when there is no other feasible way to make the public entity's program
accessible.  (It should be noted that "structural changes" include all
physical changes to a facility; the term does not refer only to changes to
structural features, such as removal of or alteration to a load-bearing
structural member.)  The requirements of 35.151 for alterations apply to
structural changes undertaken to comply with this section.  The public
entity may comply with the program accessibility requirement by delivering
services at alternate accessible sites or making home visits as appropriate.

 
     Historic preservation programs.  In order to avoid possible conflict
between the congressional mandates to preserve historic properties, on the
one hand, and to eliminate discrimination against individuals with
disabilities on the other, paragraph (a)(2) provides that a public entity
is not required to take any action that would threaten or destroy the
historic significance of an historic property.  The special limitation on
program accessibility set forth in paragraph (a)(2) is applicable only to
historic preservation programs, as defined in 35.104, that is, programs that
have preservation of historic properties as a primary purpose.  Narrow
application of the special limitation is justified because of the inherent
flexibility of the program accessibility requirement.  Where historic
preservation is not a primary purpose of the program, the public entity is
not required to use a particular facility.  It can relocate all or part of
its program to an accessible facility, make home visits, or use other
standard methods of achieving program accessibility without making
structural alterations that might threaten or destroy significant historic
features of the historic property.  Thus, government programs located in
historic properties, such as an historic State capitol, are not excused from
the requirement for program access.   
 
     Paragraph (a)(2), therefore, will apply only to those programs that
uniquely concern the preservation and experience of the historic property
itself.  Because the primary benefit of an historic preservation program is
the experience of the historic property, paragraph (b)(2) requires the
public entity to give priority to methods of providing program accessibility
that permit individuals with disabilities to have physical access to the
historic property.  This priority on physical access may also be viewed as
a specific application of the general requirement that the public entity
administer programs in the most integrated setting appropriate to the needs
of qualified individuals with disabilities  (35.130(d)).  Only when
providing physical access would threaten or destroy the historic
significance of an historic property, or would result in a fundamental
alteration in the nature of the program or in undue financial and
administrative burdens, may the public entity adopt alternative methods for
providing program accessibility that do not ensure physical access. 
Examples of some alternative methods are provided in paragraph (b)(2). 
 
     Time periods.  Paragraphs (c) and (d) establish time periods for
complying with the program accessibility requirement.  Like the regulations
for federally assisted programs (e.g., 28 CFR 41.57(b)), paragraph (c)
requires the public entity to make any necessary structural changes in
facilities as soon as practicable, but in no event later than three years
after the effective date of this regulation. 

     The proposed rule provided that, aside from structural changes, all
other necessary steps to achieve compliance with this part must be taken
within sixty days.  The sixty day period was taken from regulations
implementing section 504, which generally were effective no more than thirty
days after publication.  Because this regulation will not be effective until
January 26, 1992, the Department has concluded that no additional transition
period for non-structural changes is necessary, so the sixty day period has
been omitted in the final rule.  Of course, this section does not reduce or
eliminate any obligations that are already applicable to a public entity
under section 504. 
 
     Where structural modifications are required, paragraph (d) requires
that a transition plan be developed by an entity that employs 50 or more
persons, within six months of the effective date of this regulation.  The
legislative history of title II of the ADA makes it clear that, under title
II, "local and state governments are required to provide curb cuts on public
streets."  Education and Labor report at 84.  As the rationale for the
provision of curb cuts, the House report explains, "The employment,
transportation, and public accommodation sections of . . . [the ADA] would
be meaningless if people who use wheelchairs were not afforded the
opportunity to travel on and between the streets."  Id.  Section 35.151(e),
which establishes accessibility requirements for new construction and
alterations, requires that all newly constructed or altered streets, roads,
or highways must contain curb ramps or other sloped areas at any
intersection having curbs or other barriers to entry from a street level
pedestrian walkway, and all newly constructed or altered street level
pedestrian walkways must have curb ramps or other sloped areas at
intersections to streets, roads, or highways.  A new paragraph (d)(2) has
been added to the final rule to clarify the application of the general
requirement for program accessibility  to the provision of curb cuts at
existing crosswalks.  This paragraph requires that the transition plan
include a schedule for providing curb ramps or other sloped areas at
existing pedestrian walkways, giving priority to walkways serving entities
covered by the Act, including State and local government offices and
facilities, transportation, public accommodations, and employers, followed
by walkways serving other areas.  Pedestrian "walkways" include locations
where access is required for use of public transportation, such as bus stops
that are not located at intersections or crosswalks. 
 
     Similarly, a public entity should provide an adequate number of
accessible parking spaces in existing parking lots or garages over which it
has jurisdiction. 
 
     Paragraph (d)(3) provides that, if a public entity has already
completed a transition plan required by a regulation implementing section
504, the transition plan required by this part will apply only to those
policies and practices that were not covered by the previous transition
plan.  Some commenters suggested that the transition plan should include all
aspects of the public entity's operations, including those that may have
been covered by a previous transition plan under section 504.  The
Department believes that such a duplicative requirement would be
inappropriate.  Many public entities may find, however, that it will be
simpler to include all of their operations in the transition plan than to
attempt to identify and exclude specifically those that were addressed in
a previous plan.  Of course, entities covered under section 504 are not
shielded from their obligations under that statute merely because they are
included under the transition plan developed under this section. 

35.151 New construction and alterations.  
     (a)  Design and construction.  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.  
 
     (b)  Alteration.  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. 
 
     (c)  Accessibility standards.  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
(ADAAG) (Appendix A to 28 CFR part 36 shall be deemed to comply with the
requirements of this section with respect to those facilities, except that
the elevator exemption contained at 4.1.3(5) and 4.1.6(1)(j) of ADAAG 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. 
 
     (d)  Alterations:  Historic properties.   (1)  Alterations to historic
properties shall comply, to the maximum extent feasible, with 4.1.7 of UFAS
or 4.1.7 of ADAAG. 
 
     (2)  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. 
 
     (e) Curb ramps.  (1)  Newly constructed or altered streets, roads, and
highways must contain curb ramps or other sloped areas 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 or other sloped areas at intersections to streets, roads,
or highways. 
 
35.151 New construction and alterations. 
     Section 35.151 provides that those buildings that are constructed or
altered by, on behalf of, or for the use of a public entity shall be
designed, constructed, or altered to be readily accessible to and usable by
individuals with disabilities if the construction was commenced after the
effective date of this part.  Facilities under design on that date will be
governed by this section if the date that bids were invited falls after the
effective date.  This interpretation is consistent with Federal practice
under section 504. 
 
     Section 35.151(c) establishes two standards for accessible new
construction and alteration.  Under paragraph (c), design, construction, or
alteration of facilities in conformance with the Uniform Federal
Accessibility Standards (UFAS) or with the Americans with Disabilities Act
Accessibility Guidelines for Buildings and Facilities (hereinafter ADAAG)
shall be deemed to comply with the requirements of this section with respect
to those facilities except that, if ADAAG is chosen, the elevator exemption
contained at 36.401(d) and 36.404 does not apply.  ADAAG is the standard for
private buildings and was issued as guidelines by the Architectural and
Transportation Barriers Compliance Board (ATBCB) under title III of the ADA. 
It has been adopted by the Department of Justice and is published as
Appendix A to the Department's title III rule in today's Federal Register. 
Departures from particular requirements of these standards 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.  Use of
two standards is a departure from the proposed rule. 
 
     The proposed rule adopted UFAS as the only interim accessibility
standard because that standard was referenced by the regulations
implementing section 504 of the Rehabilitation Act promulgated by most
Federal funding agencies.  It is, therefore, familiar to many State and
local government entities subject to this rule.  The Department, however,
received many comments objecting to the adoption of UFAS.  Commenters
pointed out that, except for the elevator exemption, UFAS is not as
stringent as ADAAG.  Others suggested that the standard should be the same
to lessen confusion. 
 
     Section 204(b) of the Act states that title II regulations must be
consistent not only with section 504 regulations but also with "this Act." 
Based on this provision, the Department has determined that a public entity
should be entitled to choose to comply either with ADAAG or UFAS. 
 
     Public entities who choose to follow ADAAG, however, are not entitled
to the elevator exemption contained in title III of the Act and implemented
in the title III regulation at 36.401(d) for new construction and 36.404 for
alterations.  Section 303(b) of title III states that, with some exceptions,
elevators are not required in facilities that are less than three stories
or have less than 3000 square feet per story.  The section 504 standard,
UFAS, contains no such exemption.  Section 501 of the ADA makes clear that
nothing in the Act may be construed to apply a lesser standard to public
entities than the standards applied under section 504.  Because permitting
the elevator exemption would clearly result in application of a lesser
standard than that applied under section 504, paragraph (c) states that the
elevator exemption does not apply when public entities choose to follow
ADAAG.  Thus, a two-story courthouse, whether built according to UFAS or
ADAAG, must be constructed with an elevator.  It should be noted that
Congress did not include an elevator exemption for public transit facilities
covered by subtitle B of title II, which covers public transportation
provided by public entities, providing further evidence that Congress
intended that public buildings have elevators. 
 
     Section 504 of the ADA requires the ATBCB to issue supplemental Minimum
Guidelines and Requirements for Accessible Design of buildings and
facilities subject to the Act, including title II.  Section 204(c) of the
ADA provides that the Attorney General shall promulgate regulations
implementing title II that are consistent with the ATBCB's ADA guidelines. 
The ATBCB has announced its intention to issue title II guidelines in the
future.  The Department anticipates that, after the ATBCB's title II
guidelines have been published, this rule will be amended to adopt new
accessibility standards consistent with the ATBCB's rulemaking.  Until that
time, however, public entities will have a choice of following UFAS or
ADAAG, without the elevator exemption. 

     Existing buildings leased by the public entity after the effective date
of this part are not required by the regulation to meet accessibility
standards simply by virtue of being leased.  They are subject, however, to
the program accessibility standard for existing facilities in 35.150.  To
the extent the buildings are newly constructed or altered, they must also
meet the new construction and alteration requirements of 35.151. 

     The Department received many comments urging that the Department
require that public entities lease only accessible buildings.  Federal
practice under section 504 has always treated newly leased buildings as
subject to the existing facility program accessibility standard.  Section
204(b) of the Act states that, in the area of "program accessibility,
existing facilities," the title II regulations must be consistent with
section 504 regulations.  Thus, the Department has adopted the section 504
principles for these types of leased buildings.  Unlike the construction of
new buildings where architectural barriers can be avoided at little or no
cost, the application of new construction standards to an existing building
being leased raises the same prospect of retrofitting buildings as the use
of an existing Federal facility, and the same program accessibility standard
should apply to both owned and leased existing buildings.  Similarly,
requiring that public entities only lease accessible space would
significantly restrict the options of State and local governments in seeking
leased space, which would be particularly burdensome in rural or sparsely
populated areas. 
 
     On the other hand, the more accessible the leased space is, the fewer
structural modifications will be required in the future for particular
employees whose disabilities may necessitate barrier removal as a reasonable
accommodation.  Pursuant to the requirements for leased buildings contained
in the Minimum Guidelines and Requirements for Accessible Design published
under the Architectural Barriers Act by the ATBCB, 36 CFR 1190.34, the
Federal Government may not lease a building unless it contains (1) one
accessible route from an accessible entrance to those areas in which the
principal activities for which the building is leased are conducted, (2)
accessible toilet facilities, and (3) accessible parking facilities, if a
parking area is included within the lease (36 CFR 1190.34).  Although these
requirements are not applicable to buildings leased by public entities
covered by this regulation, such entities are encouraged to look for the
most accessible space available to lease and to attempt to find space
complying at least with these minimum Federal requirements. 
 
     Section 35.151(d) gives effect to the intent of Congress, expressed in
section 504(c) of the Act, that this part recognize the national interest
in preserving significant historic structures.  Commenters criticized the
Department's use of descriptive terms in the proposed rule that are
different from those used in the ADA to describe eligible historic
properties. In addition, some commenters criticized the Department's
decision to use the concept of "substantially impairing" the historic
features of a property, which is a concept employed in regulations
implementing section 504 of the Rehabilitation Act of 1973.  Those
commenters recommended that the Department adopt the criteria of "adverse
effect" published by the Advisory Council on Historic Preservation under the
National Historic Preservation Act, 36 CFR 800.9, as the standard for
determining whether an historic property may be altered. 
 
     The Department agrees with these comments to the extent that they
suggest that the language of the rule should conform to the language
employed by Congress in the ADA.  A definition of "historic property," drawn
from section 504 of the ADA, has been added to 35.104 to clarify that the
term applies to those properties listed or eligible for listing in the
National Register of Historic Places, or properties designated as historic
under State or local law. 
 
     The Department intends that the exception created by this section be
applied only in those very rare situations in which it is not possible to
provide access to an historic property using the special access provisions
established by UFAS and ADAAG.  Therefore, paragraph (d)(1) of 35.151 has
been revised to clearly state that alterations to historic properties shall
comply, to the maximum extent feasible, with section 4.1.7 of UFAS or
section 4.1.7 of ADAAG.  Paragraph (d)(2) has been revised to provide that,
if it has been determined under the procedures established in UFAS and ADAAG
that 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 property, alternative methods of access shall be provided pursuant to
the requirements of 35.150. 
 
     In response to comments, the Department has added to the final rule a
new paragraph (e) setting out the requirements of 36.151 as applied to curb
ramps.  Paragraph (e) is taken from the statement contained in the preamble
to the proposed rule that all 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, and that all
newly constructed or altered street level pedestrian walkways must have curb
ramps at intersections to streets, roads, or highways. 
Subpart E -- Communications 

35.152-35.159 [Reserved] 
 
Subpart E -- Communications 
 
35.160 General.   
     (a)  A public entity shall take appropriate steps to ensure that
communications with applicants, participants, and members of the public with
disabilities are as effective as communications with others. 
 
     (b)(1)  A public entity shall furnish appropriate auxiliary aids and
services where necessary to afford an individual with a disability an equal
opportunity to participate in, and enjoy the benefits of, a service,
program, or activity conducted by a public entity. 
 
     (2)  In determining what type of auxiliary aid and service is
necessary, a public entity shall give primary consideration to the requests
of the individual with disabilities. 
 
35.160 General. 
     Section 35.160 requires the public entity to take such steps as may be
necessary to ensure that communications with applicants, participants, and
members of the public with disabilities are as effective as communications
with others. 
 
     Paragraph (b)(1) requires the public entity to furnish appropriate
auxiliary aids and services when necessary to afford an individual with a
disability an equal opportunity to participate in, and enjoy the benefits
of, the public entity's service, program, or activity.  The public entity
must provide an opportunity for individuals with disabilities to request the
auxiliary aids and services of their choice.  This expressed choice shall
be given primary consideration by the public entity (35.160(b)(2)).  The
public entity shall honor the choice unless it can demonstrate that another
effective means of communication exists or that use of the means chosen
would not be required under 35.164. 
 
     Deference to the request of the individual with a disability is
desirable because of the range of disabilities, the variety of auxiliary
aids and services, and different circumstances requiring effective
communication.  For instance, some courtrooms are now equipped for
"computer-assisted transcripts," which allow virtually instantaneous
transcripts of courtroom argument and testimony to appear on displays.  Such
a system might be an effective auxiliary aid or service for a person who is
deaf or has a hearing loss who uses speech to communicate, but may be
useless for someone who uses sign language. 
 
     Although in some circumstances a notepad and written materials may be
sufficient to permit effective communication, in other circumstances they
may not be sufficient.  For example, a  qualified interpreter may be
necessary when the information being communicated is complex, or is
exchanged for a lengthy period of time.  Generally, factors to be considered
in determining whether an interpreter is required include the context in
which the communication is taking place, the number of people involved, and
the importance of the communication. 
 
     Several commenters asked that the rule clarify that the provision of
readers is sometimes necessary to ensure access to a public entity's
services, programs, or activities.  Reading devices or readers should be
provided when necessary for equal participation and opportunity to benefit
from any governmental service, program, or activity, such as reviewing
public documents, examining demonstrative evidence, and filling out voter
registration forms or forms needed to receive public benefits.  The
importance of providing qualified readers for examinations administered by
public entities is discussed under 35.130.  Reading devices and readers are
appropriate auxiliary aids and services where necessary to permit an
individual with a disability to participate in or benefit from a service,
program, or activity. 
 
     Section 35.160(b)(2) of the proposed rule, which provided that a public
entity need not furnish individually prescribed devices, readers for
personal use or study, or other devices of a personal nature, has been
deleted in favor of a new section in the final rule on personal devices and
services (see 35.135). 
 
     In response to comments, the term "auxiliary aids and services" is used
in place of "auxiliary aids" in the final rule.  This phrase better reflects
the range of aids and services that may be required under this section. 
 
     A number of comments raised questions about the extent of a public
entity's obligation to provide access to television programming for persons
with hearing impairments.  Television and videotape programming produced by
public entities are covered by this section.  Access to audio portions of
such programming may  be provided by closed captioning. 
 
35.161 Telecommunication devices for the deaf (TDD's). 
     Where a public entity communicates by telephone with applicants and
beneficiaries, TDD's or equally effective telecommunication systems shall
be used to communicate with individuals with impaired hearing or speech. 

 35.161  Telecommunication devices for the deaf (TDD's). 
     Section 35.161 requires that, where a public entity communicates with
applicants and beneficiaries by telephone, TDD's or equally effective
telecommunication systems be used to communicate with individuals with
impaired speech or hearing.   
 
     Problems arise when a public entity which does not have a TDD needs to
communicate with an individual who uses a TDD or vice versa.  Title IV of
the ADA addresses this problem by requiring establishment of telephone relay
services to permit communications between individuals who communicate by TDD
and individuals who communicate by the telephone alone.  The relay services
required by title IV would involve a relay operator using both a standard
telephone and a TDD to type the voice messages to the TDD user and read the
TDD messages to the standard telephone user.   
 
     Section 204(b) of the ADA requires that the regulation implementing
title II with respect to communications be consistent with the Department's
regulation implementing section 504 for its federally conducted programs and
activities at 28 CFR pt. 39.  Section 35.161, which is taken from
39.160(a)(2) of that regulation, requires the use of TDD's or equally
effective telecommunication systems for communication with people who use
TDD's.  Of course, where relay services, such as those required by title IV
of the ADA are available, a public entity may use those services to meet the
requirements of this section.  
 
     Many commenters were concerned that public entities should not rely
heavily on the establishment of relay services.  The commenters explained
that while relay services would be of vast benefit to both public entities
and individuals who use TDD's, the services are not sufficient to provide
access to all telephone services.  First, relay systems do not provide
effective access to the increasingly popular automated systems that require
the caller to respond by pushing a button on a touch tone phone.  Second,
relay systems cannot operate fast enough to convey messages on answering
machines, or to permit a TDD user to leave a recorded message.  Third,
communication through relay systems may not be appropriate in cases of
crisis lines pertaining to rape, domestic violence, child abuse, and drugs. 
The Department believes that it is more appropriate for the Federal
Communications Commission to address these issues in its rulemaking under
title IV. 

     Some commenters requested that those entities with frequent contacts
with clients who use TDD's have on-site TDD's to provide for direct
communication between the entity and the individual.  The Department
encourages those entities that have extensive telephone contact with the
public such as city halls, public libraries, and public aid offices, to have
TDD's to insure more immediate access.  Where the provision of telephone
service is a major function of the entity, TDD's should be available. 
 
35.162 Telephone emergency services. 
     Telephone emergency services, including 911 services, shall provide
direct access to individuals who use TDD's and computer modems. 
 
Section 35.162 Telephone emergency services. 
     Many public entities provide telephone emergency services by which
individuals can seek immediate assistance from police, fire, ambulance, and
other emergency services.  These telephone emergency services--including
"911" services--are clearly an important public service whose reliability
can be a matter of life or death.  The legislative history of title II
specifically reflects congressional intent that public entities must ensure
that telephone emergency services, including 911 services, be accessible to
persons with impaired hearing and speech through telecommunication
technology (Conference report at 67; Education and Labor report at 84-85). 
 
     Proposed 35.162 mandated that public entities provide emergency
telephone services to persons with disabilities that are "functionally
equivalent" to voice services provided to others.  Many commenters urged the
Department to revise the section to make clear that direct access to
telephone emergency services is required by title II of the ADA as indicated
by the legislative history (Conference report at 67-68; Education and Labor
report at 85).  In response, the final rule mandates "direct access,"
instead of "access that is functionally equivalent" to that provided to all
other telephone users.  Telephone emergency access through a third party or
through a relay service would not satisfy the requirement for direct access.

 
     Several commenters asked about a separate seven-digit emergency call
number for the 911 services.  The requirement for direct access disallows
the use of a separate seven-digit number where 911 service is available. 
Separate seven-digit emergency call numbers would be unfamiliar to many
individuals and also more burdensome to use.  A standard emergency 911
number is easier to remember and would save valuable time spent in searching
in telephone books for a local seven-digit emergency number. 
 
     Many commenters requested the establishment of minimum standards of
service (e.g., the quantity and location of TDD's and computer modems needed
in a given emergency center).  Instead of establishing these scoping
requirements, the Department has established a performance standard through
the mandate for direct access. 
 
     Section 35.162 requires public entities to take appropriate steps,
including equipping their emergency systems with modern technology, as may
be necessary to promptly receive and respond to a call from users of TDD's
and computer modems.  Entities are allowed the flexibility to determine what
is the appropriate technology for their particular needs.  In order to avoid
mandating use of particular technologies that may become outdated, the
Department has eliminated the references to the Baudot and ASCII formats in
the proposed rule. 
 
     Some commenters requested that the section require the installation of
a voice amplification device on the handset of the dispatcher's telephone
to amplify the dispatcher's voice.  In an emergency, a person who has a
hearing loss may be using a telephone that does not have an amplification
device.  Installation of speech amplification devices on the handsets of the
dispatchers' telephones would respond to that situation.  The Department
encourages their use. 
 
     Several commenters emphasized the need for proper maintenance of TDD's
used in telephone emergency services.  Section 35.133, which mandates
maintenance of accessible features, requires public entities to maintain in
operable working condition TDD's and other devices that provide direct
access to the emergency system. 
  
35.163 Information and signage. 
     (a)  A public entity shall ensure that interested persons, including
persons with impaired vision or hearing, can obtain information as to the
existence and location of accessible services, activities, and facilities. 
 
     (b)  A public entity shall provide signage at all inaccessible
entrances to each of its facilities, directing users to an accessible
entrance or to a location at which they can obtain information about
accessible facilities.  The international symbol for accessibility shall be
used at each accessible entrance of a facility. 
 
35.163 Information and signage. 
     Section 35.163(a) requires the public entity to provide information to
individuals with disabilities concerning accessible services, activities,
and facilities.  Paragraph (b) requires the public entity to provide signage
at all inaccessible entrances to each of its facilities that directs users
to an accessible entrance or to a location with information about accessible
facilities. 
 
     Several commenters requested that, where TDD-equipped pay phones or
portable TDD's exist, clear signage should be posted indicating the location
of the TDD.  The Department believes that this is required by paragraph (a). 
In addition, the Department recommends that, in large buildings that house
TDD's, directional signage indicating the location of available TDD's should
be placed adjacent to banks of telephones that do not contain a TDD. 

35.164 Duties.   
     This subpart does not require a public entity to take any action that
it can demonstrate would result in a fundamental alteration in the nature
of a service, program, or activity or in undue financial and administrative
burdens.  In those circumstances where personnel of the public entity
believe that the proposed action would fundamentally alter the service,
program, or activity or would result in undue financial and administrative
burdens, a public entity has the burden of proving that compliance with this
subpart would result in such alteration or burdens.  The decision that
compliance would result in such alteration or burdens must be made by the
head of the public entity or his or her designee after considering all
resources available for use in the funding and operation of the service,
program, or activity and must be accompanied by a written statement of the
reasons for reaching that conclusion.  If an action required to comply with
this subpart would result in such an alteration or such burdens, a public
entity shall take any other action that would not result in such an
alteration or such burdens but would nevertheless ensure that, to the
maximum extent possible, individuals with disabilities receive the benefits
or services provided by the public entity. 
 
35.164 Duties. 
     Section 35.164, like paragraph (a)(3) of 35.150, is taken from the
section 504 regulations for federally conducted programs.  Like paragraph
(a)(3), it limits the obligation of the public entity to ensure effective
communication in accordance with Davis and the circuit court opinions
interpreting it.  It also includes specific requirements for determining the
existence of undue financial and administrative burdens.  The preamble
discussion of 35.150(a) regarding that determination is applicable to this
section and further explains the public entity's obligation to comply with
35.160-35.164.  Because of the essential nature of the services provided by
telephone emergency systems, the Department assumes that 35.164 will rarely
be applied to 35.162. 
 
Subpart F -- Compliance Procedures 
 
Subpart F -- Compliance Procedures 
     Subpart F sets out the procedures for administrative enforcement of
this part.  Section 203 of the Act provides that the remedies, procedures,
and rights set forth in section 505 of the Rehabilitation Act of 1973 (29
U.S.C. 794a) for enforcement of section 504 of the Rehabilitation Act, which
prohibits discrimination on the basis of handicap in programs and activities
that receive Federal financial assistance, shall be the remedies,
procedures, and rights for enforcement of title II.  Section 505, in turn,
incorporates by reference the remedies, procedures, and rights set forth in
title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d to 2000d-4a). 
Title VI, which prohibits discrimination on the basis of race, color, or
national origin in federally assisted programs, is enforced by the Federal
agencies that provide the Federal financial assistance to the covered
programs and activities in question.  If voluntary compliance cannot be
achieved, Federal agencies enforce title VI either by the termination of
Federal funds to a program that is found to discriminate, following an
administrative hearing, or by a referral to this Department for judicial
enforcement. 
 
     Title II of the ADA extended the requirements of section 504 to all
services, programs, and activities of State and local governments, not only
those that receive Federal financial assistance.  The House Committee on
Education and Labor explained the enforcement provisions as follows: 
 
     It is the Committee's intent that administrative enforcement of section
202 of the legislation should closely parallel the Federal government's
experience with section 504 of the Rehabilitation Act of 1973. The Attorney
General should use section 504 enforcement procedures and the Department's
coordination role under Executive Order 12250 as models for regulation in
this area. 
 
     The Committee envisions that the Department of Justice will identify
appropriate Federal agencies to oversee compliance activities for State and
local governments.  As with section 504, these Federal agencies, including
the Department of Justice, will receive, investigate, and where possible,
resolve complaints of discrimination.  If a Federal agency is unable to
resolve a complaint by voluntary means, . . . the major enforcement sanction
for the Federal government will be referral of cases by these Federal
agencies to the Department of Justice. 

     The Department of Justice may then proceed to file suits in Federal
district court.  As with section 504, there is also a private right of
action for persons with disabilities, which includes the full panoply of
remedies.  Again, consistent with section 504, it is not the Committee's
intent that persons with disabilities need to exhaust Federal administrative
remedies before exercising their private right of action.   
 
Education & Labor report at 98.  See also S. Rep. No. 116, 101st Cong., 1st
Sess., at 57-58 (1989). 
 
     Subpart F effectuates the congressional intent by deferring to section
504 procedures where those procedures are applicable, that is, where a
Federal agency has jurisdiction under section 504 by virtue of its provision
of Federal financial assistance to the program or activity in which the
discrimination is alleged to have occurred.  Deferral to the 504 procedures
also makes the sanction of fund termination available where necessary to
achieve compliance.  Because the Civil Rights Restoration Act (Pub. L.
100-259) extended the application of section 504 to all of the operations
of the public entity receiving the Federal financial assistance, many
activities of State and local governments are already covered by section
504.  The procedures in subpart F apply to complaints concerning services,
programs, and activities of public entities that are covered by the ADA.  
 
 
     Subpart G designates the Federal agencies responsible for enforcing the
ADA with respect to specific components of State and local government.  It
does not, however, displace existing jurisdiction under section 504 of the
various funding agencies.  Individuals may still file discrimination
complaints against recipients of Federal financial assistance with the
agencies that provide that assistance, and the funding agencies will
continue to process those complaints under their existing procedures for
enforcing section 504.  The substantive standards adopted in this part for
title II of the ADA are generally the same as those required under section
504 for federally assisted programs, and public entities covered by the ADA
are also covered by the requirements of section 504 to the extent that they
receive Federal financial assistance.  To the extent that title II provides
greater protection to the rights of individuals with disabilities, however,
the funding agencies will also apply the substantive requirements
established under title II and this part in processing complaints covered
by both this part and section 504, except that fund termination procedures
may be used only for violations of section 504. 
 
     Subpart F establishes the procedures to be followed by the agencies
designated in subpart G for processing complaints against State and local
government entities when the designated agency does not have jurisdiction
under section 504. 
 
35.170 Complaints. 
     (a)  Who may file.  An individual who believes that he or she or a
specific class of individuals has been subjected to discrimination on the
basis of disability by a public entity may, by himself or herself or by an
authorized representative, file a complaint under this part. 
 
     (b)  Time for filing.  A complaint must be filed not later than 180
days from the date of the alleged discrimination, unless the time for filing
is extended by the designated agency for good cause shown.  A complaint is
deemed to be filed under this section on the date it is first filed with any
Federal agency. 
 
     (c)  Where to file.  An individual may file a complaint with any agency
that he or she believes to be the appropriate agency designated under
subpart G of this part, or with any agency that provides funding to the
public entity that is the subject of the complaint, or with the Department
of Justice for referral as provided in 35.171(a)(2).   
 
35.170 Complaints. 
     Section 35.170 provides that any individual who believes that he or she
or a specific class of individuals has been subjected to discrimination on
the basis of disability by a public entity may, by himself or herself or by
an authorized representative, file a complaint under this part within 180
days of the date of the alleged discrimination, unless the time for filing
is extended by the agency for good cause.  Although 35.107 requires public
entities that employ 50 or more persons to establish grievance procedures
for resolution of complaints, exhaustion of those procedures is not a
prerequisite to filing a complaint under this section.  If a complainant
chooses to follow the public entity's grievance procedures, however, any
resulting delay may be considered good cause for extending the time allowed
for filing a complaint under this part.   
 
     Filing the complaint with any Federal agency will satisfy the
requirement for timely filing.  As explained below, a complaint filed with
an agency that has jurisdiction under section 504 will be processed under
the agency's procedures for enforcing section 504. 
 
     Some commenters objected to the complexity of allowing complaints to
be filed with different agencies.  The multiplicity of enforcement
jurisdiction is the result of following the statutorily mandated enforcement
scheme.  The Department has, however, attempted to simplify procedures for
complainants by making the Federal agency that receives the complaint
responsible for referring it to an appropriate agency.   
 
     The Department has also added a new paragraph (c) to this section
providing that a complaint may be filed with any agency designated under
subpart G of this part, or with any agency that provides funding to the
public entity that is the subject of the complaint, or with the Department
of Justice.  Under 35.171(a)(2), the Department of Justice will refer
complaints for which it does not have jurisdiction under section 504 to an
agency that does have jurisdiction under section 504, or to the agency
designated under subpart G as responsible for complaints filed against the
public entity that is the subject of the complaint or in the case of an
employment complaint that is also subject to title I of the Act, to the
Equal Employment Opportunity Commission.  Complaints filed with the
Department of Justice may be sent to the Coordination and Review Section,
P.O. Box 66118, Civil Rights Division, U.S. Department of Justice,
Washington, D.C. 20035-6118.   
 
35.171 Acceptance of complaints. 
     (a)  Receipt of complaints.  (1)(i)  Any Federal agency that receives
a complaint of discrimination on the basis of disability by a public entity
shall promptly review the complaint to determine whether it has jurisdiction
over the complaint under section 504. 
 
     (ii)  If the agency does not have section 504 jurisdiction, it shall
promptly determine whether it is the designated agency under subpart G of
this part responsible for complaints filed against that public entity. 
 
     (2)(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, and notify the complainant
that it is referring the complaint to the Department of Justice. 
 
     (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 shall 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. 
 
     (3)(i)  If the agency that receives a complaint has section 504
jurisdiction, it shall process the complaint according to its procedures for
enforcing section 504. 
 
     (ii)  If the agency that receives a complaint does not have section 504
jurisdiction, but is the designated agency, it shall process the complaint
according to the procedures established by this subpart. 
 
     (b)  Employment complaints.  (1)  If a complaint alleges employment
discrimination subject to title I of the Act, and the agency has section 504
jurisdiction, the agency shall follow the procedures issued by the
Department of Justice and the Equal Employment Opportunity Commission under
section 107(b) of the Act. 
 
     (2)  If a complaint alleges employment discrimination subject to title
I of the Act, and the designated agency does not have section 504
jurisdiction, the agency shall refer the complaint to the Equal Employment
Opportunity Commission for processing under title I of the Act. 
     (3)  Complaints alleging employment discrimination subject to this
part, but not to title I of the Act shall be processed in accordance with
the procedures established by this subpart. 
 
     (c) Complete complaints.  (1)  A designated agency shall accept all
complete complaints under this section and shall promptly notify the
complainant and the public entity of the receipt and acceptance of the
complaint. 
 
     (2)  If the designated agency receives a complaint that is not
complete, it shall notify the complainant and specify the additional
information that is needed to make the complaint a complete complaint.  If
the complainant fails to complete the complaint, the designated agency shall
close the complaint without prejudice. 
 
35.171 Acceptance of complaints. 
     Section 35.171 establishes procedures for determining jurisdiction and
responsibility for processing complaints against public entities.  The final
rule provides complainants an opportunity to file with the Federal funding
agency of their choice.  If that agency does not have jurisdiction under
section 504, however, and is not the agency designated under subpart G as
responsible for that public entity, the agency must refer the complaint to
the Department of Justice, which will be responsible for referring it either
to an agency that does have jurisdiction under section 504 or to the
appropriate designated agency, or in the case of an employment complaint
that is also subject to title I of the Act, to the Equal Employment
Opportunity Commission. 
 
     Whenever an agency receives a complaint over which it has jurisdiction
under section 504, it will process the complaint under its section 504
procedures.  When the agency designated under subpart G receives a complaint
for which it does not have jurisdiction under section 504, it will treat the
complaint as an ADA complaint under the procedures established in this
subpart.   
 
     Section 35.171 also describes agency responsibilities for the
processing of employment complaints.  As described in connection with
35.140, additional procedures regarding the coordination of employment
complaints will be established in a coordination regulation issued by DOJ
and EEOC.  Agencies with jurisdiction under section 504 for complaints
alleging employment discrimination also covered by title I will follow the
procedures established by the coordination regulation for those complaints. 
Complaints covered by title I but not section 504 will be referred to the
EEOC, and complaints covered by this part but not title I will be processed
under the procedures in this part. 

35.172 Resolution of complaints.   
     (a)  The designated agency shall investigate each complete complaint,
attempt informal resolution, and, if resolution is not achieved, issue to
the complainant and the public entity 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 available under paragraph (b) of this
section. 
 
     (b)  If the designated agency finds noncompliance, the procedures in
35.173 and 35.174 shall be followed.  At any time, the complainant may file
a private suit pursuant to section 203 of the Act, whether or not the
designated agency finds a violation. 
 
35.172 Resolution of complaints. 
     Section 35.172 requires the designated agency to either resolve the
complaint or issue to the complainant and the public entity a Letter of
Findings containing findings of fact and conclusions of law and a
description of a remedy for each violation found. 
 
     The Act requires the Department of Justice to establish administrative
procedures for resolution of complaints, but does not require complainants
to exhaust these administrative remedies.  The Committee Reports make clear
that Congress intended to provide a private right of action with the full
panoply of remedies for individual victims of discrimination.  Because the
Act does not require exhaustion of administrative remedies, the complainant
may elect to proceed with a private suit at any time. 

35.173 Voluntary compliance agreements. 
     (a) When the designated agency issues a noncompliance Letter of
Findings, the designated agency shall-- 
 
     (1) Notify the Assistant Attorney General by forwarding a copy of the
Letter of Findings to the Assistant Attorney General; and 
 
     (2) Initiate negotiations with the public entity to secure compliance
by voluntary means. 
 
     (b) Where the designated agency is able to secure voluntary compliance,
the voluntary compliance agreement shall -- 
 
     (1) Be in writing and signed by the parties; 
 
     (2) Address each cited violation; 
 
     (3) Specify the corrective or remedial action to be taken, within a
stated period of time, to come into compliance;  
 
     (4) Provide assurance that discrimination will not recur; and 
 
     (5) Provide for enforcement by the Attorney General.  
 
35.173 Voluntary compliance agreements. 
     Section 35.173 requires the agency to attempt to resolve all complaints
in which it finds noncompliance through voluntary compliance agreements
enforceable by the Attorney General. 
 
35.174 Referral.   
     If the public entity declines to enter into voluntary compliance
negotiations or if negotiations are unsuccessful, the designated agency
shall refer the matter to the Attorney General with a recommendation for
appropriate action.  

35.174 Referral. 
     Section 35.174 provides for referral of the matter to the Department
of Justice if the agency is unable to obtain voluntary compliance. 
 
35.175 Attorney's fees. 
     In any action or administrative proceeding commenced pursuant to the
Act or this part, the court or agency, in its discretion, may allow the
prevailing party, other than the United States, a reasonable attorney's fee,
including litigation expenses, and costs, and the United States shall be
liable for the foregoing the same as a private individual. 
 
35.175 Attorney's fees. 
     Section 35.175 states that courts are authorized to award attorneys
fees, including litigation expenses and costs, as provided in section 505
of the Act.  Litigation expenses include items such as expert witness fees,
travel expenses, etc.  The Judiciary Committee Report specifies that such
items are included under the rubric of "attorneys fees" and not "costs" so
that such expenses will be assessed against a plaintiff only under the
standard set forth in Christiansburg Garment Co. v. Equal Employment
Opportunity Commission, 434 U.S. 412 (1978).  (Judiciary report at 73.) 

35.176 Alternative means of dispute resolution. 
     Where appropriate and to the extent authorized by law, the use of
alternative means of dispute resolution, including settlement negotiations,
conciliation, facilitation, mediation, factfinding, minitrials, and
arbitration, is encouraged to resolve disputes arising under the Act and
this part.  

35.176 Alternative means of dispute resolution. 
     Section 35.176 restates section 513 of the Act, which encourages use
of alternative means of dispute resolution. 
 
35.177 Effect of unavailability of technical assistance. 
     A public entity shall not be excused from compliance with the
requirements of this part because of any failure to receive technical
assistance, including any failure in the development or dissemination of any
technical assistance manual authorized by the Act.  
 
35.177 Effect of unavailability of technical assistance. 
     Section 35.177 explains that, as provided in section 506(e) of the Act,
a public entity is not excused from compliance with the requirements of this
part because of any failure to receive technical assistance.  

35.178 State immunity.  
    A State shall not be immune under the eleventh amendment to the
Constitution of the United States from an action in Federal or State court
of competent jurisdiction for a violation of this Act.  In any action
against a State for a violation of the requirements of this Act, remedies
(including remedies both at law and in equity) are available for such a
violation to the same extent as such remedies are available for such a
violation in an action against any public or private entity other than a
State. 
 
35.178 State immunity. 
     Section 35.178 restates the provision of section 502 of the Act that
a State is not immune under the eleventh amendment to the Constitution of
the United States from an action in Federal or State court for violations
of the Act, and that the same remedies are available for any such violations
as are available in an action against an entity other than a State. 

35.179-35.189 [Reserved] 
 
 
Subpart G -- Designated Agencies  
 
35.190 Designated agencies. 
     (a) The Assistant Attorney General shall coordinate the compliance
activities of Federal agencies with respect to State and local government
components, and shall provide policy guidance and interpretations to
designated agencies to ensure the consistent and effective implementation
of the requirements of this part. 
 
     (b) The Federal agencies listed in paragraph (b)(1)-(8) of this section
shall have responsibility for the implementation of subpart F of this part
for components of State and local governments that exercise
responsibilities, regulate, or administer services, programs, or activities
in the following functional areas. 
 
     (1) Department of Agriculture:  all programs, services, and regulatory
activities relating to farming and the raising of livestock, including
extension services. 
 
     (2) Department of Education:  all programs, services, and regulatory
activities relating to the operation of elementary and secondary education
systems and institutions, institutions of higher education and vocational
education (other than schools of medicine, dentistry, nursing, and other
health-related schools), and libraries. 
      
     (3) Department of Health and Human Services:  all programs, services,
and regulatory activities relating to the provision of health care and
social services, including schools of medicine, dentistry, nursing, and
other health-related schools, the operation of health care and social
service providers and institutions, including "grass-roots" and community
services organizations and programs, and preschool and daycare programs. 
 
     (4) Department of Housing and Urban Development:  all programs,
services, and regulatory activities relating to state and local public
housing, and housing assistance and referral. 
 
     (5) Department of Interior:  all programs, services, and regulatory
activities relating to lands and natural resources, including parks and
recreation, water and waste management, environmental protection, energy,
historic and cultural preservation, and museums. 
 
     (6) Department of Justice:  all programs, services, and regulatory
activities relating to law enforcement, public safety, and the
administration of justice, including courts and correctional institutions;
commerce and industry, including general economic development, banking and
finance, consumer protection, insurance, and small business; planning,
development, and regulation (unless assigned to other designated agencies);
state and local government support services (e.g., audit, personnel,
comptroller, administrative services); all other government functions not
assigned to other designated agencies. 
 
     (7) Department of Labor:  all programs, services, and regulatory
activities relating to labor and the work force. 
 
     (8) Department of Transportation:  all programs, services, and
regulatory activities relating to transportation, including highways, public
transportation, traffic management (non-law enforcement), automobile
licensing and inspection, and driver licensing. 
 
     (c)  Responsibility for the implementation of subpart F of this part
for components of State or local governments that exercise responsibilities,
regulate, or administer services, programs, or activities relating to
functions not assigned to specific designated agencies by paragraph (b) of
this section may be assigned to other specific agencies by the Department
of Justice. 
 
     (d) If two or more agencies have apparent responsibility over a
complaint, the Assistant Attorney General shall determine which one of the
agencies shall be the designated agency for purposes of that complaint. 

Subpart G -- Designated Agencies 
 
35.190 Designated agencies. 
     Subpart G designates the Federal agencies responsible for investigating
complaints under this part.  At least 26 agencies currently administer
programs of Federal financial assistance that are subject to the
nondiscrimination requirements of section 504 as well as other civil rights
statutes.  A majority of these agencies administer modest programs of
Federal financial assistance and/or devote minimal resources exclusively to
"external" civil rights enforcement activities.  Under Executive Order
12250, the Department of Justice has encouraged the use of delegation
agreements under which certain civil rights compliance responsibilities for
a class of recipients funded by more than one agency are delegated by an
agency or agencies to a "lead" agency.  For example, many agencies that fund
institutions of higher education have signed agreements that designate the
Department of Education as the "lead" agency for this class of recipients. 
 
 
     The use of delegation agreements reduces overlap and duplication of
effort, and thereby strengthens overall civil rights enforcement.  However,
the use of these agreements to date generally has been limited to education
and health care recipients.  These classes of recipients are funded by
numerous agencies and the logical connection to a lead agency is clear
(e.g., the Department of Education for colleges and universities, and the
Department of Health and Human Services for hospitals).  
 
     The ADA's expanded coverage of State and local government operations
further complicates the process of establishing Federal agency jurisdiction
for the purpose of investigating complaints of discrimination on the basis
of disability.  Because all operations of public entities now are covered
irrespective of the presence or absence of Federal financial assistance,
many additional State and local government functions and organizations now
are subject to Federal jurisdiction.  In some cases, there is no historical
or single clear-cut subject matter relationship with a Federal agency as was
the case in the education example described above.  Further, the 33,000
governmental jurisdictions subject to the ADA differ greatly in their
organization, making a detailed and workable division of Federal agency
jurisdiction by individual State, county, or municipal entity unrealistic. 

     This regulation applies the delegation concept to the investigation of
complaints of discrimination on the basis of disability by public entities
under the ADA.  It designates eight agencies, rather than all agencies
currently administering programs of Federal financial assistance, as
responsible for investigating complaints under this part.  These "designated
agencies" generally have the largest civil rights compliance staffs, the
most experience in complaint investigations and disability issues, and broad
yet clear subject area responsibilities.  This division of responsibilities
is made functionally rather than by public entity type or name designation. 
For example, all entities (regardless of their title) that exercise
responsibilities, regulate, or administer services or programs relating to
lands and natural resources fall within the jurisdiction of the Department
of Interior.   
 
     Complaints under this part will be investigated by the designated
agency most closely related to the functions exercised by the governmental
component against which the complaint is lodged.  For example, a complaint
against a State medical board, where such a board is a recognizable entity,
will be investigated by the Department of Health and Human Services (the
designated agency for regulatory activities relating to the provision of
health care), even if the board is part of a general umbrella department of
planning and regulation (for which the Department of Justice is the
designated agency).  If two or more agencies have apparent responsibility
over a complaint, section 35.190(c) provides that the Assistant Attorney
General shall determine which one of the agencies shall be the designated
agency for purposes of that complaint. 
  
     Thirteen commenters, including four proposed designated agencies,
addressed the Department of Justice's identification in the proposed
regulation of nine "designated agencies" to investigate complaints under
this part.  Most comments addressed the proposed specific delegations to the
various individual agencies.  The Department of Justice agrees with several
commenters who pointed out that responsibility for "historic and cultural
preservation" functions appropriately belongs with the Department of
Interior rather than the Department of Education.  The Department of Justice
also agrees with the Department of Education that "museums" more
appropriately should be delegated to the Department of Interior, and that
"preschool and daycare programs" more appropriately should be assigned to
the Department of Health and Human Services, rather than to the Department
of Education.  The final rule reflects these decisions. 
 
     The Department of Commerce opposed its listing as the designated agency
for "commerce and industry, including general economic development, banking
and finance, consumer protection, insurance, and small business".  The
Department of Commerce cited its lack of a substantial existing section 504
enforcement program and experience with many of the specific functions to
be delegated.  The Department of Justice accedes to the Department of
Commerce's position, and has assigned itself as the designated agency for
these functions. 
 
     In response to a comment from the Department of Health and Human
Services, the regulation's category of "medical and nursing schools" has
been clarified to read "schools of medicine, dentistry, nursing, and other
health-related fields".  Also in response to a comment from the Department
of Health and Human Services, "correctional institutions" have been
specifically added to the public safety and administration of justice
functions assigned to the Department of Justice. 
 
     The regulation also assigns the Department of Justice as the designated
agency responsible for all State and local government functions not assigned
to other designated agencies.  The Department of Justice, under an agreement
with the Department of the Treasury, continues to receive and coordinate the
investigation of complaints filed under the Revenue Sharing Act.  This
entitlement program, which was terminated in 1986, provided civil rights
compliance jurisdiction for a wide variety of complaints regarding the use
of Federal funds to support various general activities of local governments. 
In the absence of any similar program of Federal financial assistance
administered by another Federal agency, placement of designated agency
responsibilities for miscellaneous and otherwise undesignated functions with
the Department of Justice is an appropriate continuation of current
practice. 
 
     The Department of Education objected to the proposed rule's inclusion
of the functional area of "arts and humanities" within its responsibilities,
and the Department of Housing and Urban Development objected to its proposed
designation as responsible for activities relating to rent control, the real
estate industry, and housing code enforcement.  The Department has deleted
these areas from the lists assigned to the Departments of Education and
Housing and Urban Development, respectively, and has added a new paragraph
(c) to section 35.190, which provides that the Department of Justice may
assign responsibility for components of State or local governments that
exercise responsibilities, regulate, or administer services, programs, or
activities relating to functions not assigned to specific designated
agencies by paragraph (b) of this section to other appropriate agencies. 
The Department believes that this approach will provide more flexibility in
determining the appropriate agency for investigation of complaints involving
those components of State and local governments not specifically addressed
by the listings in paragraph (b).  As provided in 35.170 and 35.171,
complaints filed with the Department of Justice will be referred to the
apropriate agency. 
 
     Several commenters proposed a stronger role for the Department of
Justice, especially with respect to the receipt and assignment of
complaints, and the overall monitoring of the effectiveness of the
enforcement activities of Federal agencies.  As discussed above, 35.170 and
35.171 have been revised to provide for referral of complaints by the
Department of Justice to appropriate enforcement agencies.  Also, language
has been added to 35.190(a) of the final regulation stating that the
Assistant Attorney General shall provide policy guidance and interpretations
to designated agencies to ensure the consistent and effective implementation
of this part. 
 

35.191-5.999 [Reserved] 
 
 
 
 
 
 

.TCEL.
