[Federal Register Volume 77, Number 54 (Tuesday, March 20, 2012)]
[Proposed Rules]
[Pages 16196-16198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6747]
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DEPARTMENT OF JUSTICE
28 CFR Parts 35 and 36
[CRT Docket No. 123; AG Order No. 3327-2012]
RIN 1190-AA69
Delaying the Compliance Date for Certain Requirements of the
Regulations Implementing Titles II and III of the Americans With
Disabilities Act
AGENCY: Civil Rights Division, Department of Justice.
ACTION: Notice of proposed rulemaking.
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SUMMARY: By this rule, the Department of Justice is proposing to extend
the date for compliance with certain requirements in the 2010 Americans
with Disabilities Act (ADA) Standards for Accessible Design that relate
to provision of accessible entry and exit for existing swimming pools
and spas. Concurrently with the publication of this Notice of Proposed
Rulemaking (NPRM), the Department is publishing a final rule that
extends the compliance date with respect to existing swimming pools,
wading pools, and spas to May 21, 2012 in order to allow additional
time to address misunderstandings among pool owners and operators
regarding these ADA requirements. By this rule, the Department seeks
public comment on its proposal to extend the compliance date for a
longer period of six months, until September 17, 2012 in the interest
of promoting clear and consistent application of the ADA's requirements
to existing facilities.
[[Page 16197]]
DATES: Written comments must be postmarked and electronic comments must
be submitted on or before April 4, 2012. Comments received by mail will
be considered timely if they are postmarked on or before that date.
Commenters should be aware that the electronic Federal Docket
Management System will not accept comments after Midnight Eastern Time
on the last day of the comment period.
ADDRESSES: You may submit comments, identified by RIN (or Docket No.
123), by any one of the following methods:
Federal eRulemaking portal: www.regulations.gov. Follow
the Web site instructions for submitting comments. The Regulations.gov
Docket ID is.
Mail: Please submit all written comments to Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, 950
Pennsylvania Avenue NW., Washington, DC 20530.
Overnight, courier or hand delivery: Disability Rights
Section, Civil Rights Division, U.S. Department of Justice, 1425 New
York Avenue NW., Suite 4039, Washington, DC 20005.
Please submit your comments by only one method. Because of the
short timeframe for this rulemaking, the Department will not review
comments received by means other than those listed above, or that are
received after the comment period has closed. While the Department is
soliciting comments on the proposed suspension of the applicability of
the requirements in the 2010 Standards to swimming pools and spas, we
do not with this NPRM seek comments related to the merits of the
requirements themselves, which have already been evaluated fully
through an earlier, extensive notice and comment process. We will deem
any such comments on this NPRM out of scope and will not consider them.
FOR FURTHER INFORMATION CONTACT: Allison Nichol, Chief, Disability
Rights Section, Civil Rights Division, U.S. Department of Justice, at
(202) 307-0663 (voice or TTY). This is not a toll-free number.
Information may also be obtained from the Department's toll-free ADA
Information Line at (800) 514-0301 (voice) or (800) 514-0383 (TTY).
SUPPLEMENTARY INFORMATION:
Posting of Public Comments. Please note that all comments received
are considered part of the public record and made available for public
inspection online at http://www.regulations.gov. Such information
includes personal identifying information (such as your name and
address) voluntarily submitted by the commenter.
You are not required to submit personal identifying information in
order to comment on this rule. Nevertheless, if you want to submit
personal identifying information (such as your name and address) as
part of your comment, but do not want it to be posted online, you must
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first
paragraph of your comment. You also must locate all the personal
identifying information you do not want posted online in the first
paragraph of your comment and identify what information you want
redacted.
If you want to submit confidential business information as part of
your comment but do not want it to be posted online, you must include
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph
of your comment. You also must prominently identify confidential
business information to be redacted within the comment. If a comment
has so much confidential business information that it cannot be
effectively redacted, all or part of that comment may not be posted on
http://www.regulations.gov.
Personal identifying information and confidential business
information identified and located as set forth above will be placed in
the agency's public docket file, but not posted online. If you wish to
inspect the agency's public docket file in person by appointment,
please see the paragraph above entitled FOR FURTHER INFORMATION
CONTACT.
The reason the Department is requesting electronic comments before
Midnight Eastern Time at the end of the day the comment period closes
is that the inter-agency Regulations.gov/Federal Docket Management
System (FDMS), which receives electronic comments, terminates the
public's ability to submit comments at that time. Commenters in time
zones other than Eastern may want to take this fact into account so
that their electronic comments can be received. The constraints imposed
by the Regulations.gov/FDMS system do not apply to U.S. postal comments
which, as stated above, will be considered as timely filed if they are
postmarked before Midnight on the day the comment period closes.
Discussion
The Department of Justice published its revised final regulations
implementing the Americans with Disabilities Act (ADA) for title II
(State and local government services) and title III (public
accommodations and commercial facilities) on September 15, 2010. See 75
FR 56163. The revised ADA rules were the result of a six-year process
to update the Department's regulations. As part of this process, the
Department sought extensive public comment, issuing an Advance Notice
of Proposed Rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, and
two Notices of Proposed Rulemaking (NPRM) on June 17, 2008, 73 FR 34466
(title II), and 73 FR 34508 (title III). The Department also held a
public hearing on the NPRMs and received more than 4,435 written public
comments. On September 15, 2010, the Department published a final rule
revising the regulations implementing titles II and III of the ADA. As
part of this revision, the Department adopted the 2010 ADA Standards
for Accessible Design (``2010 Standards''), which are based in large
part on the 2004 ADA Accessibility Guidelines adopted by the United
States Access Board in 2004. See 69 FR 44083 (July 23, 2004). With
limited exception, the Department's revised regulations went into
effect on March 15, 2011.
With a compliance deadline of March 15, 2012, the 2010 Standards
set minimum scoping and technical requirements for accessible entry and
exit for new construction and alteration of swimming pools, wading
pools, and spas (collectively, ``pools''). In addition, the title III
regulation provides that as of March 15, 2012, public accommodations'
barrier removal efforts must comply with the 2010 Standards to the
extent readily achievable, including with respect to barriers to
accessing pools. 28 CFR 36.304(d)(2)(iii). The title II regulation
provides that the 2010 Standards apply where public entities choose to
meet their title II ADA program access obligations by making structural
changes to their pools. 28 CFR 35.150(b)(1), (2)(ii).
To help educate pool owners and operators concerning the
requirements imposed by the regulations issued by the Department in
September 2010, the Civil Rights Division published a technical
assistance document entitled ``ADA 2010 Revised Requirements:
Accessible Pools--Means of Entry and Exit'' (the ``TA Document''), on
January 31, 2012. Both the inquiries received by the Department prior
to the TA Document's publication and the pool owners and operators'
response to the TA Document reveal that there were misunderstandings
among a substantial number of pool owners and operators concerning the
obligations imposed by the ADA as implemented in the 2010 Final Rule as
to their obligations with respect to existing pools and their options
with respect to the provision of pool lifts. Some pool owners and
[[Page 16198]]
operators believed that taking certain steps would always satisfy their
obligations when in fact those steps would not necessarily result in
compliance with the ADA regulations. Recognizing that pool owners and
operators face challenges in correcting their misunderstandings and
determining appropriate compliance when faced with what is now an
immediate compliance date, the Department determined that it would be
impracticable and contrary to the public interest to retain the
existing compliance date. Thus the Department is contemporaneously
issuing a Final Rule providing a brief 60-day extension of the March
15, 2012, compliance date.
The Department now requests public comment on a proposal to further
extend the compliance dates for the title II program accessibility
requirements pursuant to 28 CFR 35.150 and the title III barrier
removal obligations pursuant to 28 CFR 36.304 as they relate to
accessible means of entry into swimming pools, wading pools, and spas
in compliance with the 2010 Standards. The proposed extension would run
for a period of 180 days from the compliance date specified in the
September 2010 Final Rule, namely March 15, 2012. As discussed above,
the extension would provide pool owners and operators additional time
to evaluate and comply with their program accessibility and readily
achievable barrier removal obligations in compliance with sections 242
and 1009 of the 2010 Standards.
Regulatory Certifications
Executive Order 12866--Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b),
Principles of Regulation. The Department of Justice has determined that
this rule is a ``significant regulatory action'' under Executive Order
12866, section 3(f), Regulatory Planning and Review, and accordingly
this rule has been reviewed by the Office of Management and Budget
(OMB).
Executive Order 12988--Civil Justice Reform
This rule meets the applicable standards set forth in sections 3(a)
and 3(b)(2) of Executive Order 12988.
Executive Order 13132--Federalism
This rule will not have substantial direct effects on the States,
on the relationship between the Federal Government and the States, or
on distribution of power and responsibilities among the various levels
of government. Therefore, in accordance with Executive Order 13132, it
is determined that this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Assessment.
Regulatory Flexibility Act
The Attorney General, in accordance with the Regulatory Flexibility
Act (5 U.S.C. 605(b)), has reviewed this regulation, and by approving
it certifies that it will not have a significant economic impact on a
substantial number of small entities. This rule merely requests comment
on a proposal to further extend the compliance dates for the title II
program accessibility requirements pursuant to 28 CFR 35.150 and the
title III barrier removal obligations pursuant to 28 CFR 36.304 as they
relate to accessible means of entry into swimming pools, wading pools,
and spas. The extension would provide regulated entities additional
time to evaluate and comply with their program accessibility and
readily achievable barrier removal obligations.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more, a major increase in costs or prices, or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign-based companies in domestic and export markets.
Unfunded Mandates Reform Act of 1995
Section 4(2) of the Unfunded Mandates Reform Act of 1995, 2 U.S.C.
1503(2), excludes from coverage under that Act any proposed or final
Federal regulation that ``establishes or enforces any statutory rights
that prohibit discrimination on the basis of race, color, religion,
sex, national origin, age, handicap, or disability.'' Accordingly, this
rulemaking is not subject to the provisions of the Unfunded Mandates
Reform Act.
Paperwork Reduction Act of 1995
This proposed rule does not contain any information collection
requirements that require approval by OMB under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq.
Dated: March 15, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-6747 Filed 3-15-12; 4:45 pm]
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