#9 III-7.

5185 May 1, 1992

Ms. Nessa Feddis Senior Federal Counsel American Bankers Association 1120 Connecticut Avenue, N.W. Washington, D.C. 20036 Dear Ms. Feddis: I am responding to your letter relating to accessibility requirements for automated teller machines (ATM's) under the Americans with Disabilities Act (ADA). As required by the Americans with Disabilities Act, the requirements that apply to ATM's are included in guidelines developed by the Architectural and Transportation Barriers Compliance Board (Access Board). These guidelines are incorporated into the Department of Justice's ADA regulation. The ADA requires that our regulation be consistent with the guidelines of the Access Board. The provision in question, which applies only to new construction and alterations, requires that a person using a wheelchair be able to reach the controls of an ATM through both a forward and a side reach. This provision was included in the ADA Accessibility Guidelines when they were first published for comment in January 1991. The Guidelines were subject to an extensive public comment process that included 18 public hearings. The concerns that you are now raising were not expressed during the rulemaking process. The Department of Justice takes seriously the concerns that you have stated. As you know, the Access Board recently decided to reopen this issue to public comment through a notice in the Federal Register and to hold a hearing on the matter. The action

of the Board has the support and concurrence of the Department of Justice. However, while changes to the rule are under consideration, the Department is not in a position to amend the provision on ATM's, and we are constrained to enforce the requirements of the ADA regulation now in effect. You should be aware that section 2.2 of the ADA Accessibility Guidelines permits departures from particular technical requirements by use of other designs and technologies where the alternative designs and technologies will provide substantially equivalent or greater access to and usability of the facility. Based on the information you have sent us, it appears that, in some circumstances, the ATM's that are currently available may be usable by individuals with disabilities. If you can demonstrate that particular ATM's, as installed, provide equivalent facilitation, they will be considered as complying with the ADA. You may be able to show that meeting one of the reach ranges specified in {4.2.5 or {4.2.6 provides equivalent facilitation, assuming all other requirements for ATM's contained in {4.34.1, {4.34.2, and {4.34.4 are met. You have described two situations as a common occurrence in the banking industry: the installation of new ATM's that were ordered before the effective date of the ADA, and the relocation of existing ATM's, originally installed prior to January 26, 1992. You have suggested that compliance with neither {4.2.5 nor {4.2.6 will be possible with respect to many of these machines. While the number of such ATM's is not certain, we are confident that many can be "redeployed" consistent with the standards. For example, they could be used as drive-up-only teller machines, which are not required to comply with {{4.27.2, 4.27.3, and 4.34.3. (See {4.1.3(20), exception.) They could also be used at locations where two or more ATM's are provided, because only one is required to comply in that situation. (See {4.1.3(20).) In limited circumstances, they could be installed outside the specified reach ranges if the use of the particular equipment so dictated ({4.27.3, exception) or where full compliance would be technically infeasible in alterations due to existing physical or site constraints ({4.1.6(1)(j)). Please note: The interpretations in the preceding two paragraphs are premised on the information currently available to us and will be revisited based on the information received as a result of the Access Board's notice.

Based on the approach that I have outlined here, your fears of an adverse economic impact on ATM vendors and financial institutions should be greatly alleviated. I strongly urge you to submit data and other information to the Access Board in response to its notice. Sincerely,

John R. Dunne Assistant Attorney General Civil Rights Division