[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 30173-30180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12365]



[[Page 30173]]

Vol. 77

Monday,

No. 98

May 21, 2012

Part IV





Department of Justice





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28 CFR Parts 35 and 36





Amendment of Americans With Disabilities Act Title II and Title III 
Regulations To Extend Compliance Date for Certain Requirements Related 
to Existing Pools and Spas Provided by State and Local Governments and 
by Public Accommodations; Final Rule

Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and 
Regulations

[[Page 30174]]


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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 123; A.G. Order No. 3332-2012]
RIN 1190-AA69


Amendment of Americans With Disabilities Act Title II and Title 
III Regulations To Extend Compliance Date for Certain Requirements 
Related to Existing Pools and Spas Provided by State and Local 
Governments and by Public Accommodations

AGENCY: Department of Justice, Civil Rights Division.

ACTION: Final rule.

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SUMMARY: This final rule revises the Department of Justice regulations 
implementing the Americans with Disabilities Act to extend until 
January 31, 2013, the compliance date for the application of sections 
242 and 1009 of the 2010 Americans with Disabilities Act (ADA) 
Standards for Accessible Design for existing pools and spas.

DATES: Effective Date: This rule will take effect on May 21, 2012.

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: 

Background

    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 56164, 56236 (September 15, 2010). The revised ADA rules were the 
result of a six-year process to update the Department's ADA 
regulations. As part of this process, the Department sought 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. This process 
culminated with publication of the Department's final rules on 
September 15, 2010.
    As part of this revision, the Department adopted the 2010 ADA 
Standards for Accessible Design (``2010 Standards''). A copy of the 
2010 ADA Standards is available at http://www.ada.gov/2010ADAstandards_index.htm. The 2010 Standards replace the 1991 ADA 
Standards for Accessible Design and, for the first time, contain 
specific accessibility requirements for certain types of recreational 
facilities, including the requirement to provide accessible means of 
entry and exit to swimming pools, wading pools, and spas. With limited 
exceptions, the Department's revised ADA title II and title III 
regulations went into effect on March 15, 2011. The regulations 
provided that covered entities were not obligated to comply with the 
2010 Standards until March 15, 2012 (the compliance date).
    The 2010 Standards are based in large part on the 2004 ADA 
Accessibility Guidelines, which were adopted by the United States 
Access Board (``Access Board'') in 2004 following a decade-long effort 
to revise the Board's 1991 ADA Accessibility Guidelines. See 69 FR 
44084 (July 23, 2004). The ADA requires the Department to issue 
regulations that include enforceable accessibility standards applicable 
to facilities subject to title II or title III that are consistent with 
the ``minimum guidelines'' issued by the Access Board, 42 U.S.C. 
12134(c), 12186(c). The Attorney General has sole responsibility for 
promulgating accessibility standards that fall within the Department's 
jurisdiction and enforcing the Department's regulations, which include 
the accessibility standards.
    The 2010 Standards set minimum scoping and technical requirements 
for accessible means of entry (and exit) for newly constructed and 
altered swimming pools, wading pools, and spas (collectively, 
``pools''). The 2010 Standards include requirements for accessible 
means of entry for large and small pools. These requirements are found 
at sections 242 and 1009 of the 2010 Standards. Specifically, section 
242 provides that large pools (pools with 300 linear feet of pool wall 
or more) must have two accessible means of entry, one of which must be 
a pool lift or sloped entry; the other accessible means of entry 
include a transfer wall, transfer system, or pool stairs. Small pools 
(pools with less than 300 linear feet of pool wall) must provide at 
least one accessible means of entry, which must be either a pool lift 
or a sloped entry.
    The 2010 Standards also provide details about what features an 
accessible means of entry should include. Specifically, section 1009 
addresses pool lift requirements such as the location, size of the 
seat, lifting capacity, and clear floor space, as well as the 
requirements for sloped entry, transfer wall, transfer system, or pool 
stairs.
    Sections 35.151(d) and 36.406(b) of the respective title II and 
title III regulations specify that the 2010 Standards only apply to 
fixed or built-in elements. Sections 35.151(c) and 36.406(a) provide 
that the 2010 Standards apply to new construction and alterations of 
covered buildings and facilities.
    With regard to existing facilities, the title II rule published in 
2010 provided that, as of March 15, 2012, the 2010 Standards apply 
whenever public entities choose to meet their title II ADA program 
accessibility obligations by making structural alterations to their 
existing facilities, 28 CFR 35.150(b)(1).\1\ The title III rule 
published in 2010 provided that on or after March 15, 2012, public 
accommodations must generally use the 2010 Standards as the benchmark 
for their ongoing obligation to remove architectural barriers in 
existing facilities to the extent such compliance is readily 
achievable. 28 CFR 36.304(d).\2\ As discussed below, with respect to 
the provision of title II program accessibility and title III readily 
achievable barrier removal, the Department has postponed the compliance 
date for the specific requirements in the 2010 Standards relating to 
accessible means of entry for existing pools until May 21, 2012.
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    \1\ Section 35.150(b)(1) of the title II regulation, which 
addresses program accessibility in existing facilities, provides 
state and local governments with flexibility to use other means such 
as acquisition or redesign of equipment, or reassignment of programs 
or services to accessible buildings, in lieu of making structural 
alterations to facilities when they are providing program 
accessibility in their existing programs, services, or activities.
    \2\ Section 36.304(d)(1) requires covered entities to apply the 
alterations provisions of the regulations (except the path of travel 
provisions) when removing barriers, but only to the extent that it 
is readily achievable to do so. Section 36.304(d)(2)(iii) provides 
that elements in existing facilities that are subject to the 
supplemental requirements, including the accessible means of entry 
requirements for pools and spas, must be modified to the extent 
readily achievable to comply with the 2010 Standards.
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    Under the ADA, the Department is responsible for providing 
technical assistance to entities covered by titles II and III to help 
them understand their obligations under the ADA. 42 U.S.C. 12206(c)(1). 
Since issuing its revised rule, the Department has developed and 
published technical assistance documents to assist entities to 
understand the revised regulations. To

[[Page 30175]]

help educate pool owners and operators concerning the requirements 
imposed by the Department's 2010 regulations, 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. Available at http://www.ada.gov/pools_2010.htm. This document provided an overview of the new 
accessibility requirements for pools and discussed the application of 
the requirements in the context of the longstanding obligations of 
covered entities to provide readily achievable barrier removal (title 
III) and program accessibility (title II).
    Inquiries received by the Department both prior to the TA 
Document's publication and in response to the TA Document revealed that 
there were significant concerns and misunderstandings among a 
substantial number of pool owners and operators with respect to what 
was required for title III entities in order to engage in readily 
achievable barrier removal, or for title II entities to provide program 
accessibility with respect to their existing pools now that the ADA 
regulations included minimum scoping and technical requirements for 
accessible means of entry for pools. Some pool owners and 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. For example, some pool owners and 
operators believed, incorrectly, that providing non-fixed lifts (lifts 
that are not attached to the pool deck and often referred to as 
portable lifts) would in all circumstances achieve compliance with the 
ADA regulations, even in circumstances where providing a fully 
compliant lift is readily achievable. Others expressed the view that 
they would have to close pools due to an inability to provide access, 
even though the regulations allow pool owners and operators to use non-
fixed lifts or no lifts at all in circumstances where the provision of 
access is not readily achievable. The vast majority of pool owners and 
operators expressing these concerns were title III entities.
    Recognizing the extent of the misunderstandings in determining 
appropriate compliance when faced with an immediate compliance date, 
and consistent with Executive Order 13563, ``Improving Regulation and 
Regulatory Review'' (with its emphasis on promoting predictability and 
public participation), the Department determined that it would be 
impracticable and contrary to the public interest to retain the March 
15, 2012, compliance date for application of these requirements to 
existing pools. 77 FR 16163, 16164 (March 20, 2012). Thus, the 
Department issued a Final Rule extending the date for compliance with 
sections 242 and 1009 of the 2010 Standards as they relate to existing 
pools (pools built before March 15, 2012) from March 15, 2012, to May 
21, 2012. 77 FR 16163, 16163 (March 20, 2012).\3\ The Department's 
action had no effect on the compliance date for these requirements as 
they applied to newly constructed pools or pools altered for purposes 
other than to provide program accessibility or barrier removal (e.g., 
scheduled alterations or improvements).
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    \3\ See 77 FR at 16163 (``Effective on March 15, 2012, the 
compliance date for 28 CFR 35.150(b)(1), (b)(2)(ii), and 28 CFR 
36.304(d)(2)(iii) for sections 242 and 1009 of the 2010 Standards is 
delayed to May 21, 2012.''). The referenced sections in 28 CFR for 
which the compliance date was delayed apply only to existing 
facilities, not to new construction or alterations.
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    Contemporaneously with issuing the rule extending the compliance 
date for existing pools until May 21, 2012, the Department issued an 
NPRM seeking public comment regarding whether a longer extension of the 
compliance date would be appropriate to allow pool owners and operators 
additional time to meet their obligations with regard to providing 
access into their existing pools. 77 FR 16196 (March 20, 2012). 
Specifically, the Department requested comment on a proposed extension 
that would postpone the required compliance date for sections 242 and 
1009 of the 2010 Standards until September 17, 2012--a total of just 
over 180 days from the original March 15, 2012, compliance date 
specified in the September 2010 final regulations. The NPRM proposed 
that this extension would ``provide pool owners and operators 
additional time to evaluate and comply with their program accessibility 
and readily achievable barrier removal obligations with respect to 
sections 242 and 1009 of the 2010 Standards.'' 77 FR at 16198. The 
Department also anticipated that an extension would serve ``the 
interest of promoting clear and consistent application of the ADA's 
requirements to existing facilities.'' 77 FR at 16196. The proposed 
extension would have no impact on the March 15, 2012, compliance date 
for new construction and alterations of swimming pools and spas. In 
addition, the NPRM made it clear that, although the Department was 
considering extending the compliance date for the application of the 
requirements to existing pools, the NPRM was not proposing to change 
those requirements or modify the ADA regulations in any other way and, 
thus, the Department was not soliciting comments on the merits of the 
requirements. 77 FR at 16197.

Discussion of Public Comments

    In response to its proposal, the Department received approximately 
1,915 public comments from individuals with disabilities, organizations 
representing individuals with disabilities, pool owners and operators, 
and other entities covered by the regulations. Approximately 1,420 
commenters supported the proposal and approximately 495 commenters 
opposed it. While the vast majority of commenters were concerned about 
the impact of the requirements on title III public accommodations, 
there were some comments from title II entities.
    Organizations representing the hotel industry and individual owners 
and operators of hotels and campgrounds provided the largest number of 
comments in support of postponing the compliance date. Of these 
comments, approximately 520 were form comments submitted anonymously. 
Other commenters who supported the proposal included homeowners 
associations, pool lift manufacturers, individual owners and operators 
of pools and spas, and some title II entities. Commenters opposed to 
the proposed extension included many organizations representing persons 
with disabilities, including veterans with disabilities, numerous 
individuals with disabilities, and some title II entities. Many 
comments illustrated the kinds of misunderstandings and concerns that 
led to the Department's decision to propose the extension. This final 
rule will not address specific comments about the merits of the 
requirements for accessible means of entry for pools, except to the 
extent that they illustrate these misunderstandings or provide support 
or opposition for the proposed compliance date extension.
    The Department received numerous comments opposing a further 
extension of the effective date for the provisions requiring an 
accessible means of entry for existing pools. Commenters with 
disabilities and their families, as well as organizations representing 
individuals with disabilities, urged the Department not to extend the 
deadline further. These commenters provided a variety of reasons why 
the deadline should not be extended. Some commenters objected on the 
grounds that the regulatory process, which included numerous 
opportunities for public comment, had yielded carefully constructed

[[Page 30176]]

regulations and accessibility standards. Several commenters noted that 
entities have had nearly two years to plan for and comply with the 
revised requirements for access into existing pools and, thus, 
additional time was unnecessary. One organization representing 
individuals with disabilities noted that the barrier removal concept 
has not changed since the ADA was passed in 1990 and that title III 
entities have had over 20 years and extensive technical assistance on 
the concept to understand their obligations. The organization believed 
an additional four months would not yield a better understanding. The 
same organization felt strongly that the extension was inappropriate 
for title II entities, which have long been required to address access 
into their existing pools under the program access requirement.
    Many commenters emphasized the negative impact that an extension 
would have for individuals with disabilities. Commenters stated that an 
extension would require them to continue to pay full price for a hotel 
room during the extension period while not having full access to the 
amenities of the facilities. One commenter took issue with the 
categorization of pool access as a luxury, stating that access to other 
amenities, such as restaurants, could similarly be considered luxuries, 
yet access to such amenities is required for all paying customers.
    Some of the most moving comments came from families with 
individuals with disabilities. Parents of children with disabilities 
shared their stories of how their children were getting too big for 
them to carry in and out of the pool safely or with dignity. Several 
recounted how their older children loved to swim and wanted to partake 
in family outings to the pool, but then explained that it was difficult 
to safely transfer a wet and slippery child across a slick pool deck. 
Parents with disabilities also lamented their inability to join their 
children in the pool. For these families, an extension of the 
compliance date for the pool requirements would mean another year of 
summer vacations without access.
    The Department also heard from organizations representing veterans 
with disabilities who indicated that, after a decade of war, a 
significant number of service members have returned with injuries and 
are reintegrating into their communities by participating in adaptive 
sports and that these individuals should have access to pools and spas 
in their communities without further delay. One veteran with a 
disability stated that he had very few methods of exercise that he 
could use to stay in shape and expressed frustration about having to 
travel long distances to a pool with a compliant lift for his weekly 
swim. Many other commenters also stated that swimming was one of the 
few exercises available to many individuals with disabilities and that 
the extension would further delay pool access that has been long 
sought.
    Several state-level advisory organizations on disability issues 
provided comments opposing the extension. These organizations stated 
that they believed that there had been ample time for title II and 
title III entities to comply and that delaying implementation further 
would constitute a roll-back of the ADA. These organizations were 
especially concerned about the resistance of public accommodations in 
their states to implement the new requirements and the impact this 
would have on residents and visitors with disabilities.
    The Department also received numerous comments supporting a further 
extension of the effective date for the provisions requiring an 
accessible means of entry for existing pools, primarily as they apply 
to the obligations of title III entities to engage in barrier removal. 
Many of these commenters supported a longer extension for the 
compliance period, for a minimum of six additional months. These 
commenters believed that an extension of the compliance date was 
necessary in order to give public accommodations sufficient time to 
fully understand and implement the pool access requirements and to 
arrange for installation of fixed lifts (lifts that are attached to the 
pool deck), given that many pool owners and operators had previously 
believed that portable lifts were permissible even when it was readily 
achievable to provide a fixed lift.
    Two other categories of comments, primarily provided by owners and 
operators of pools at public accommodations who supported the 
Department's proposal to extend the compliance date, further 
underscored the misunderstandings and concerns that have arisen about 
the pool accessibility requirements adopted in the 2010 Standards. 
First, some commenters suggested that the requirement that the pool 
lift be fixed was not part of the title III regulation published by the 
Department in September 2010, but was, instead, an interpretation the 
Department later developed outside of the rulemaking process. However, 
the Department has had a longstanding position that the ADA Standards 
apply to fixed and built-in elements. See, e.g., Department of Justice, 
Americans With Disabilities Act, ADA Title III Technical Assistance 
Manual Covering Public Accommodations and Commercial Facilities (Supp. 
1994), III-5.3000, available at http://www.ada.gov/taman3up.html, 
(providing that ``[o]nly equipment that is fixed or built in to the 
facility, is covered by the accessibility standards''). The Department 
codified that position in both the revised title II and title III 
regulations, see 28 CFR 35.151(d) and 36.406(b). Throughout the six-
year process of revising the ADA regulations, the Department stated 
that the ADA Standards did not apply to freestanding (e.g., non-fixed, 
moveable, or portable) equipment. For example, the 2004 ANPRM included 
a section entitled, ``Application of ADA Standards and ADA to Free-
Standing Equipment,'' in which the Department stated that the ADA 
Standards do not apply to portable equipment. See 69 FR 58768, 58775 
(Sept. 30, 2004) (providing that ``the revised ADA Standards will apply 
directly only to fixed equipment--as described above, equipment that 
becomes built into the structure of a facility--and not to free-
standing equipment''). The 2008 title III NPRM and the 2010 Final Rules 
reiterated this point. See 73 FR 34508, 34543 (June 17, 2008) (``The 
Department is proposing a new Sec.  36.406(b) that would clarify that 
the requirements established by this section, including those contained 
in the proposed standards (and the 2004 [ADA Accessibility Guidelines]) 
prescribe the requirements necessary to ensure that fixed or built-in 
elements in new or altered facilities are accessible to people with 
disabilities.''); 75 FR 56236, 56303 (Sept. 15, 2010) (``The final 
[title III] rule contains a new Sec.  36.406(b) that clarifies that the 
requirements established by this section, including those contained in 
the 2004 [ADA Accessibility Guidelines], prescribe the requirements 
necessary to ensure that fixed or built-in elements in new or altered 
facilities are accessible to individuals with disabilities.'').\4\
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    \4\ Moreover, the Regulatory Impact Analysis (RIA) for the final 
rule looked at the costs with respect to fixed and built-in elements 
when analyzing the provisions of the 2010 Standards. With respect to 
pools, the RIA included both the cost of purchasing a lift as well 
as the cost of installing the lift for barrier removal in existing 
pools. See Final RIA at pp. 59-60, 283 (July 23, 2010), available at 
http://www.ada.gov/regs2010/RIA_2010regs/DOJ%20ADA%20Final%20RIA.pdf.
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    Section 36.304(d) of the title III regulation specifies that 
measures taken to comply with the readily achievable barrier removal 
requirement must comply with the applicable

[[Page 30177]]

requirements for alterations as set forth in Sec.  36.402 and 
Sec. Sec.  36.404 through 36.406, which reference the 2010 Standards. 
Given that the ADA Standards apply only to fixed or built-in elements, 
the title III regulation requires the use of fixed elements when 
removing barriers in existing facilities unless it is not readily 
achievable to do so. Thus, it follows that public accommodations 
engaged in barrier removal must provide a fixed or built-in lift in 
existing pools as long as it is readily achievable.
    A second group of commenters who owned or operated public 
accommodations and who supported the extension mistakenly believed that 
if they could not comply with the pool access requirements of the 2010 
Standards (because compliant pool lifts were unavailable or they could 
not afford to provide a lift, for example), they would be forced to 
close their pools. This is also a misunderstanding of the ADA 
regulations. Compliance with the 2010 Standards is only required to the 
extent that it is ``readily achievable''--a term that means ``easily 
accomplishable and able to be carried out without much difficulty or 
expense.'' See 28 CFR 36.104. Thus, title III of the ADA does not 
require that a public accommodation close its pool facility if, for 
example, compliant pool lifts are not available or if the facility 
cannot afford such a lift. In such circumstances, a public 
accommodation can achieve compliance with its ADA obligations without 
installing a fully compliant pool lift, because that measure would not 
be ``easily accomplishable'' or ``able to be carried out without much 
difficulty or expense.'' Id. The revised 2010 title III regulation, 
like the 1991 regulation that preceded it, implements the ``readily 
achievable'' definition established by Congress in the statute and 
maintains unchanged the definition of ``readily achievable'' 
incorporated in the 1991 regulation.
    To determine whether providing an accessible means of entry to an 
existing pool is readily achievable, businesses must use the same 
general barrier removal analysis that has always applied to other 
covered elements in existing facilities. Both the ADA statute, which 
Congress passed in 1990, and the Department's ADA title III regulation, 
which was originally published in 1991, set out a case-by-case analysis 
to be used in determining whether removing certain barriers is readily 
achievable. Specifically, the regulations provide at Sec.  36.104 that 
in determining whether an action is readily achievable, the factors to 
be considered include:
    (1) The nature and cost of the action;
    (2) The overall financial resources of the site or sites involved, 
the number of persons employed at the site, the effect on expenses and 
resources, legitimate safety requirements necessary for safe operation, 
including crime prevention measures, and any other impact of the action 
on the operation of the site;
    (3) The geographic separateness, and the administrative or fiscal 
relationship of the site or sites in question to any parent corporation 
or entity;
    (4) If applicable, the overall financial resources of any parent 
corporation or entity, the overall size of the parent corporation or 
entity with respect to the number of its employees, and the number, 
type, and location of its facilities; and
    (5) If applicable, the type of operation or operations of any 
parent corporation or entity, including the composition, structure, and 
functions of the workforce of the parent corporation or entity.\5\
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    \5\ Since the title III regulation first took effect, the 
Department has provided extensive technical assistance regarding the 
readily achievable barrier requirement for existing facilities. The 
technical assistance material provided by the Department contains 
examples of the application of this requirement. Pool owners and 
operators can access information on barrier removal on the 
Department's ADA Web site, www.ada.gov. Publications that address 
barrier removal include, but are not limited to, the 1993 ADA Title 
III Technical Assistance Manual (Section III-4.4200), available at 
http://www.ada.gov/taman3.html, the 1996 ADA Guide for Small 
Businesses (revised and reissued in 1999), which was published in 
conjunction with the Small Business Administration (``SBA''), 
available at http://www.ada.gov/smbusgd.pdf, and a 2005 online 
course entitled ``Reaching Out to Customers With Disabilities,'' 
which is available at http://www.ada.gov/reachingout/intro1.htm.
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    Under this standard, which has applied to places of public 
accommodation since 1991, hotels and other public accommodations will 
not be required to close their existing pools if compliance with the 
applicable ADA Accessibility Standards is not easily accomplishable or 
able to be carried out without much difficulty or expense. Similarly, 
the inability of a public accommodation to install a lift due to 
insufficient space at the side of the pool deck would be addressed by 
using the barrier removal analysis, which does not require entities to 
undertake changes that cannot be accomplished without much difficulty 
or expense.
    Several commenters, including a pool lift manufacturer, supported 
an extension on the basis that there is currently a significant backlog 
in availability of compliant lifts. They were concerned that if the 
pool access requirements took effect, pool owners and operators who 
could not acquire a lift because of a manufacturing backlog would be in 
violation of the ADA. However, the lack of availability of a compliant 
lift because of limitations in manufacturing capacity would demonstrate 
that it is not readily achievable to comply with the requirements, 
until such time as a lift becomes available.
    The Department received a small number of comments from title II 
entities, the majority of which were from small local governments. Most 
of these commenters favored the proposed extension. A number of them 
believed a moveable lift was appropriate to comply with the revised ADA 
requirements and had not accounted for the costs associated with a 
fixed pool lift in their yearly budgets. As a result, these entities 
supported the extension in order to secure additional funding. However, 
the title II program accessibility requirements allow the use of 
equipment as an alternative to making structural changes to an existing 
facility; thus these entities would not necessarily have to provide a 
fixed lift in order to satisfy their program accessibility 
obligation.\6\
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    \6\ Section 35.150 requires that title II entities operate each 
service, program or activity, so that when viewed in its entirety, 
the service, program or activity is readily accessible to and usable 
by individuals with disabilities.
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    Some title II entities stated that they would have to close down 
community pools rather than incur the expense of complying with the 
regulation. To the contrary the title II program accessibility 
regulation does not require title II entities to make changes to their 
programs, services, or activities if the changes would constitute a 
fundamental alteration or would impose an undue financial and 
administrative burden. Title II does not require a facility to close 
when compliance with the program accessibility requirements poses an 
undue financial and administrative burden. This is the case whether the 
title II facility in question is a public office, a school, or a 
swimming pool.
    Some of the comments the Department received reflected 
misconceptions about the abilities of persons with disabilities to 
participate in the same activities that are afforded persons without 
disabilities. The ADA was intended, in part, to address these 
misconceptions.
    Without the pool access requirement of the regulations, it is clear 
that many individuals with disabilities would not be able to avail 
themselves of pool amenities offered by covered entities. As noted by 
many commenters opposed to the proposed extension, individuals with 
disabilities have long awaited the

[[Page 30178]]

ADA Accessibility Standards that address access to recreational 
facilities, such as pools. These comments illustrate the significant 
impact that a further extension would have on many individuals with 
disabilities and their families during yet another summer pool season. 
On the other hand, as stated above and in the Department's NPRM, it is 
clear to the Department that a significant number of pool owners and 
operators may continue to have misunderstandings and concerns about 
their obligations with regard to providing access to existing pools. 
These misunderstandings have affected pool operators and owners in at 
least three ways that are relevant to the Department's proposal. First, 
it appears that some places of public accommodation initially proceeded 
on the misunderstanding that a portable pool lift would in all 
circumstances satisfy the pool accessibility requirements of the 2010 
Standards. Those pool operators and owners will need time to undertake 
a fact-specific analysis about whether the installation of a fully 
compliant pool lift is ``readily achievable,'' and to implement their 
compliance plan. Second, the comments suggested that at least some pool 
owners and operators who generally speaking would find installation of 
a compliant pool lift to be ``readily achievable'' currently are having 
difficulty locating compliant pool lifts that are available for 
purchase. The Department believes that this circumstance provides an 
additional reason to postpone the compliance date, thereby allowing a 
greater number of covered entities to purchase and install compliant 
pool lifts. Third, comments received by the Department also raise 
concerns that, absent an extension, some covered entities might respond 
to the compliance date by taking steps that the law does not require 
and that would actually undermine the goal of ensuring that individuals 
with disabilities obtain the benefits that the regulations sought to 
ensure--safe and compliant pool access to existing pools when it is 
readily achievable to provide it. For example, if pool owners and 
operators close pools because they incorrectly believe that the 2010 
Standards require that a fully compliant pool lift must be installed in 
all cases, those closures will reduce access to pools for everyone, 
including individuals with disabilities. Similarly, if pool owners and 
operators are unable to obtain compliant lifts because of the lack of 
availability, they may unwittingly purchase non-compliant lifts that 
will not provide safe and independent pool access to persons with 
disabilities.
    After carefully considering all of these factors, including the 
unique burdens that an additional postponement would impose on 
individuals with disabilities, the Department has concluded that a 
further extension of the compliance date is warranted. Although the 
Department originally proposed a four-month extension until September 
17, 2012, based on the breadth of the concerns and the 
misunderstandings about the requirements expressed in the comments the 
Department received, the Department has decided to extend the 
compliance date for sections 242 and 1009 of the 2010 Standards for 
existing pools subject to title III barrier removal and to title II 
program access until January 31, 2013. That date is one year from the 
date that the Department issued its initial guidance clarifying that 
the ADA regulations required fixed pool lifts, and is still well in 
advance of next year's swim season. The Department emphasizes that this 
extension is consistent with Executive Order 13563, which emphasizes 
the importance of promoting predictability and reducing uncertainty, 
and which also stresses the value of public participation and an ``open 
exchange of information and perspectives.''
    This longer extension will provide additional time for the 
Department to continue to educate covered entities about their 
obligations under the 2010 Standards with regard to providing access 
into their existing pools, to respond to relevant concerns, and to 
address misunderstandings that could lead covered entities to take 
unnecessary and counterproductive steps, thereby allowing all 
stakeholders to have the same understanding of what is required by the 
ADA and promoting broader compliance with the rule. The Department also 
believes that the additional time will allow covered entities to 
complete the fact-specific evaluation required by the ``readily 
achievable'' standard, and to implement their compliance plans, 
including by taking the steps necessary to comply with the pool 
accessibility requirements of the 2010 Standards.

Section-by-Section Analysis

Section 35.150(b)(1)

    Currently, Sec.  35.150(b)(1) specifies that if a public entity 
chooses to make structural alterations to existing buildings in order 
to meet its program accessibility obligations, it shall comply with the 
accessibility requirements set forth in Sec.  35.151. The current title 
II regulation specifies, at Sec.  35.151(c)(3), that all facilities 
that are newly constructed or altered on or after March 15, 2012 must 
comply with the 2010 Standards.\7\ The final rule postpones the 
compliance date, as applied to the requirements for accessible means of 
entry for existing pools, by adding a new paragraph (b)(4) to Sec.  
35.150. The new paragraph reads: ``The requirements set forth in 
sections 242 and 1009 of the 2010 Standards shall not apply until 
January 31, 2013, if a public entity chooses to make structural changes 
to existing swimming pools, wading pools, or spas built before March 
15, 2012, for the sole purpose of complying with the program 
accessibility requirements set forth in this section.
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    \7\ As discussed earlier, the Department issued a Final Rule 
extending the date for compliance with sections 242 and 1009 of the 
2010 Standards as they relate to existing pools (pools built as of 
March 15, 2012), until May 21, 2012. See 77 FR at 16163. However, 
the regulatory text was not revised.
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Section 36.304

    Section 36.304(d) currently specifies that on or after March 15, 
2012, public accommodations must generally use the 2010 Standards as 
the benchmark for their ongoing obligation to remove architectural 
barriers in existing facilities to the extent such compliance is 
readily achievable. The final rule extends the compliance date for 
applying the barrier removal requirements for accessible means of entry 
for pools, by adding paragraph (g)(5), which states the following: 
``The application of this requirement to facilities built before March 
15, 2012, for accessible means of entry for swimming pools, wading 
pools, and spas as set forth in sections 242 and 1009 of the 2010 
Standards shall not apply until January 31, 2013.''
    The final rule also modifies the Appendix to Sec.  36.304(d) to 
reflect the extension of the compliance date.

Regulatory Certifications

Administrative Procedure Act

    The Department finds good cause to make this regulation effective 
without a 30-day delay in the effective date, pursuant to 5 U.S.C. 
553(d), as it relieves a restriction by extending 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 existing 
swimming pools, wading pools, and spas, from May 21, 2012, until 
January 31, 2013.

[[Page 30179]]

Executive Order 13563 and Executive Order 12866--Regulatory Planning 
and Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 13563, ``Improving Regulation and Regulatory Review,'' 
and Executive Order 12866, ``Regulatory Planning and Review'' section 
1(b), The Principles of Regulation. The Department of Justice has 
determined that this rule is a ``significant regulatory action'' under 
Executive Order 12866, section 3(f), 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 extends 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 existing swimming pools, wading pools, and spas. The extension 
provides 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 251 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. 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 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.

List of Subjects for 28 CFR Parts 35 and 36

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Communications, Individuals with disabilities, Reporting 
and recordkeeping requirements, State and local governments, Business 
and industry.

    By the authority vested in me as Attorney General by law, including 
28 U.S.C. 509 and 510, 5 U.S.C. 301, and sections 204 and 306 of the 
Americans with Disabilities Act of 1990, Public Law 101B336 (42 U.S.C. 
12134 and 12186), chapter I of title 28 of the Code of Federal 
Regulations is amended as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

0
1. The authority citation for part 35 continues to read as follows:

    Authority:  5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.


0
2. In Sec.  35.150, paragraph (b)(4) is added to read as follows:


Sec.  35.150  Existing facilities.

* * * * *
    (b) * * *
    (4) Swimming pools, wading pools, and spas. The requirements set 
forth in sections 242 and 1009 of the 2010 Standards shall not apply 
until January 31, 2013, if a public entity chooses to make structural 
changes to existing swimming pools, wading pools, or spas built before 
March 15, 2012, for the sole purpose of complying with the program 
accessibility requirements set forth in this section.
* * * * *

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC 
ACCOMMODATIONS AND COMMERCIAL FACILITIES

0
3. The authority citation for part 36 continues to read as follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).


0
4. Amend Sec.  36.304 as follows:
0
a. Revise the Appendix to Sec.  36.304(d), and
0
b. Add paragraph (g)(5), to read as follows:


Sec.  36.304  Removal of barriers.

* * * * *
    (d) * * *

Appendix to Sec.  36.304(d)

 Compliance Dates and Applicable Standards for Barrier Removal and Safe
                                 Harbor
------------------------------------------------------------------------
                                                           Applicable
             Date                     Requirement           standards
------------------------------------------------------------------------
Before March 15, 2012.........  Elements that do not    1991 Standards
                                 comply with the         or 2010
                                 requirements for        Standards.
                                 those elements in the
                                 1991 Standards must
                                 be modified to the
                                 extent readily
                                 achievable.
                                Note: Noncomplying
                                 newly constructed and
                                 altered elements may
                                 also be subject to
                                 the requirements of
                                 Sec.   36.406(a)(5)..

[[Page 30180]]

 
On or after March 15, 2012....  Elements that do not    2010 Standards.
                                 comply with the
                                 requirements for
                                 those elements in the
                                 1991 Standards or
                                 that do not comply
                                 with the supplemental
                                 requirements (i.e.,
                                 elements for which
                                 there are neither
                                 technical nor scoping
                                 specifications in the
                                 1991 Standards), must
                                 be modified to the
                                 extent readily
                                 achievable. There is
                                 an exception for
                                 existing pools,
                                 wading pools, and
                                 spas built before
                                 March 15, 2012 [See
                                 Sec.   36.304(g)(5)].
                                Note: Noncomplying
                                 newly constructed and
                                 altered elements may
                                 also be subject to
                                 the requirements of
                                 Sec.   36.406(a)(5)..
On or after January 31, 2013..  For existing pools,     Sections 242 and
                                 wading pools, and       1009 of the
                                 spas built before       2010 Standards.
                                 March 15, 2012,
                                 elements that do not
                                 comply with the
                                 supplemental
                                 requirements for
                                 entry to pools,
                                 wading pools, and
                                 spas must be modified
                                 to the extent readily
                                 achievable [See Sec.
                                  36.304(g)(5)].
Elements not altered after      Elements that comply    Safe Harbor.
 March 15, 2012.                 with the requirements
                                 for those elements in
                                 the 1991 Standards do
                                 not need to be
                                 modified.
------------------------------------------------------------------------

* * * * *
    (g) * * *
    (5) With respect to facilities built before March 15, 2012, the 
requirements in this section for accessible means of entry for 
swimming pools, wading pools, and spas, as set forth in sections 242 
and 1009 of the 2010 Standards, shall not apply until January 31, 
2013.
* * * * *

    Dated: May 17, 2012.
James M. Cole.
Acting Attorney General.
[FR Doc. 2012-12365 Filed 5-17-12; 4:15 pm]
BILLING CODE 4410-13-P