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

Section 610 Review.

The Department is also required to conduct a periodic regulatory review pursuant to section 610 of the RFA, 5 U.S.C. 601 et seq., as amended by the SBREFA, 5 U.S.C. 610 et seq.

The review requires agencies to consider five factors: (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules and, to the extent feasible, with state and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.  See 5 U.S.C. 610(b).  Based on these factors, the agency is required to determine whether to continue the rule without change or to amend or rescind the rule, to minimize any significant economic impact of the rule on a substantial number of small entities.  See id. at 610 (a).

In developing these proposed rules, the Department has gone through its regulations section by section, and, as a result, proposes several clarifications and amendments in both the title II and title III implementing regulations.  The proposals reflect the Department's analysis and review of complaints or comments from the public as well as changes in technology.  Many of the proposals aim to clarify and simplify the obligations of covered entities.  As discussed in greater detail above, one significant goal of the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes.  The Department has also worked to create harmony where appropriate between the requirements of titles II and III.  Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.

The Department has consulted with the Small Business Administration's Office of Advocacy about this process.  The Office of Advocacy has advised that although the process followed by the Department was ancillary to the proposed adoption of revised ADA Standards, the steps taken to solicit public input and to respond to public concerns is functionally equivalent to the process required to complete a section 610 review. Therefore, this rulemaking fulfills the Department's obligations under the RFA.