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Paragraph (b) provides that, for the purposes of this part, an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof. One commenter suggested that the concept of usability should apply only to those changes that affect access by persons with disabilities. The Department remains convinced that the Act requires the concept of usability to be read broadly to include any change that affects the usability of the facility, not simply changes that relate directly to access by individuals with disabilities. The Department received a significant number of comments on the examples provided in paragraphs (b)(1) and (b)(2) of the proposed rule. Some commenters urged the Department to limit the application of this provision to major structural modifications, while others asserted that it should be expanded to include cosmetic changes such as painting and wallpapering. The Department believes that neither approach is consistent with the legislative history, which requires this Department's regulation to be consistent with the accessibility guidelines (ADAAG) developed by the Architectural and Transportation Barriers Compliance Board (ATBCB). Although the legislative history contemplates that, in some instances, the ADA accessibility standards will exceed the current MGRAD requirements, it also clearly indicates the view of the drafters that minor changes such as painting or papering walls * * * do not affect usability (Education and Labor report at 111, Judiciary report at 64), and, therefore, are not alterations. The proposed rule was based on the existing MGRAD definition of alteration. The language of the final rule has been revised to be consistent with ADAAG, incorporated as appendix A to this part.
(Code of Federal Regulations. Title 28, Volume 1. TITLE 28--JUDICIAL ADMINISTRATION. CHAPTER I--DEPARTMENT OF JUSTICE. PART 36_NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC ACCOMMODATIONS AND IN COMMERCIAL FACILITIES CITE: 28CFR36 )