[Federal Register Volume 77, Number 98 (Monday, May 21, 2012)]
[Rules and Regulations]
[Pages 30174-30180]
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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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