28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Regulatory Flexibility Act

This NPRM has also been reviewed by the Small Business Administration's Office of Advocacy pursuant to Executive Order 13272, 67 FR 53461 (Aug. 13, 2002).  Because the proposed rule, if adopted, may have a significant economic impact on a substantial number of small entities, the Department has conducted an Initial Regulatory Flexibility Analysis (IRFA) as a component of this rulemaking.  The Department's ANPRM, NPRM, and the RIA include all of the elements of the IRFA required by the Regulatory Flexibility Act (RFA).  See 5 U.S.C. 601 et seq., as amended by SBREFA, 5 U.S.C. 603(b)(1)-(5), 603(c).                    

Section 603(b) lists specific requirements for an IRFA regulatory analysis.  The Department has addressed these IRFA issues throughout the ANPRM, NPRM, and the RIA.  In summary, the Department has satisfied its IRFA obligations under section 603(b) by providing the following:

1. Description of the reasons that action by the agency is being considered.  See, e.g., "The Roles of the Access Board and the Department of Justice," "The Revised Guidelines," and "The Advance Notice of Proposed Rulemaking" sections of the titles II and III NPRMs; Section 2.1, "Access Board Regulatory Assessment" of the Initial Regulatory Impact Analysis;  see also Department of Justice ADA Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768-70 (Sept. 30, 2004) (outlining the regulatory history and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA);

2. Succinct statement of the objectives of, and legal basis for, the proposed rule.   See, e.g., titles II and III NPRM sections entitled, "Summary," "Overview," "Purpose," "The ADA and Department of Justice Regulations," "The Roles of the Access Board and the Department of Justice," "Background (SBREFA, Regulatory Flexibility Act, and Executive Order) Reviews," and "Regulatory Impact Analysis"; App. B: Regulatory Assessment sections entitled, "Background," "Regulatory Alternatives," "Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits"; see also 69 FR at 58768-70, 58778-79 (outlining the goals and statutory directives for the regulations implementing titles II and III of the ADA);

3. Description of, and, where feasible, an estimate of the number of small entities to which the proposed rule will apply.  See Section 6, "Small Business Impact Analysis" and App. 5, "Small Business Data of the RIA" (available for review at http://www.ada.gov); see also App. B: Regulatory Assessment sections entitled, "Regulatory Alternatives," Regulatory Proposals with Cost Implications," and "Measurement of Incremental Benefits" (estimating the number of small entities the Department believes may be impacted by the proposed rules and calculating the likely incremental economic impact of these rules on small facilities/entities versus "typical" (i.e., average-sized) facilities/entities);

4. Description of the projected reporting, record-keeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record.  See titles II and III NPRM sections entitled, "Paperwork Reduction Act" (providing that no new record-keeping or reporting requirements will be imposed by the NPRMs).  The Department acknowledges that there are other compliance requirements in the NPRMs that may impose costs on small entities.  These costs are presented in the Department's Initial Regulatory Impact Analysis, Chapter 6, "Small Business Impact Analysis" and accompanying App. 5, "Small Business Data" (available for review at http://www.ada.gov);

5. Identification, to the extent practicable, of all relevant federal rules that may duplicate, overlap, or conflict with the proposed rule.  See, e.g., title II NPRM sections entitled, "Analysis of Impact on Small Entities" (generally describing DOJ efforts to eliminate duplication or overlap in federal accessibility guidelines), "The ADA and Department of Justice Regulations," "Social Service Establishments" (§ 35.151(e)), "Streamlining Complaint Investigations and Designated Agency Authority" (§§ 35.171, 35.172, and 35.190), "Executive Order 13132: Federalism" (discussing interplay of section 504 and ADA Standards), "Alterations" (§ 35.151(b)) (discussing interplay of UFAS and ADA Standards); title III NPRM sections entitled, "Analysis of Impact on Small Entities" (generally describing DOJ's harmonization efforts with other federal accessibility guidelines), "Social Service Establishments" (§ 36.406(d)), "Definitions of Residential Facilities and Transient Lodging," "Housing at a Place of Education" (§ 36.406(e)) (discussing section 504), "Change 'Service Animal' to 'Assistance Animal,'" "Scope of Coverage" (discussing Fair Housing Act), "Effective Date: Time Period," and "Social Service Establishments" (discussing UFAS); and

6. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and minimize any significant impact of the proposed rule on small entities, including alternatives considered, such as: (1) Establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) use of performance rather than design standards; and (3) any exemption from coverage of the rule, or any part thereof, for such small entities

The Department's rulemaking efforts satisfy the IRFA requirement for consideration of significant regulatory alternatives.  In September 2004, the Department issued an ANPRM to commence the process of revising its regulations implementing titles II and III of the ADA.  See 69 FR 58768 (Sept. 30, 2004).  Among other things, the ANPRM sought public comment on 54 specific questions.  Prominent among these questions was the issue of whether (and how) to craft a "safe harbor" provision for existing title III-covered facilities/entities that would reduce the financial burden of complying with the 2004 ADAAG.  See id. at 58771-72.  The ANPRM also specifically invited comment from small entities concerning the proposed rules' potential economic impact and suggested regulatory alternatives to ameliorate such impact.  Id. at 58779 (Question 10).  By the end of the comment period, the Department had received over 900 comments, including comments from SBA's Office of Advocacy and small entities.  See, e.g., title II NPRM Preamble and title III NPRM Preamble sections entitled, "The Advance Notice of Proposed Rulemaking" (summarizing public response to the ANPRM).  Many small business advocates expressed concern regarding the cost of making older existing title III-covered buildings compliant with new regulations (since many small businesses operate in such facilities) and urged DOJ to issue clearer guidance on barrier removal.  See title III NPRM Preamble discussion of "Safe harbor and other proposed limitations on barrier removal."

In drafting the NPRMs for titles II and III, the Department expressly addressed small businesses' collective ANPRM comments and proposed regulatory alternatives to help mitigate the economic impact of the proposed regulations on small entities.  For example, the Department's regulatory proposals:

• Provide a "safe harbor" provision whereby elements in existing title II-or title III-covered buildings or facilities that are compliant with the current 1991 Standards or UFAS need not be modified to comply with the standards in the proposed regulations (see "Safe Harbor" and § 35.150(b)(2) of the title II NPRM; "Safe Harbor and Other Proposed Limitations on Barrier Removal" and § 36.304 of the title III NPRM);

• Adopt a regulatory alternative for barrier removal that, for the first time, provides a specific annual monetary "cost cap" for barrier removal obligations for qualified small businesses (see title III NPRM sections entitled, "Safe Harbor and Other Proposed Limitations on Barrier Removal" and "Safe Harbor for Qualified Small Businesses Regarding What Is Readily Achievable");

• Exempt certain existing small recreational facilities (i.e., play areas, swimming pools, saunas, and steam rooms) which, in turn, are often owned or operated by small entities, from barrier removal obligations in order to comply with the standards in the proposed regulations (see title II NPRM at § 35.150(b)(4) and (5); title III NPRM section entitled, "Reduced Scoping for Public Accommodations, Small Facilities, and Qualified Small Businesses"); and

• Reduce scoping for certain other existing recreational facilities (i.e., play areas over 1,000 square feet and swimming pools with over 300 linear feet of pool wall) operated by either title II or title III entities (see title II NPRM at § 35.150(b)(4) and (5); title III NPRM section entitled, "Reduced Scoping for Public Accommodations, Small Facilities, and Qualified Small Businesses").

Taken together, the foregoing regulatory proposals amply demonstrate that the Department was sensitive to the potential economic impact of the revised regulations on small businesses and attempted to mitigate this impact with a variety of provisions that, to the extent consistent with the ADA, impose reduced compliance standards on small entities.