28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Effective date: Time period. (Section-by-Section Analysis)

When the ADA was enacted, the effective dates for various provisions were delayed in order to provide time for covered entities to become familiar with their new obligations.  Titles II and III of the ADA generally became effective on January 26, 1992, six months after the regulations were published.  New construction under title II and alterations under either title II or title III had to comply with the design standards on that date.  For new construction under title III, the requirements applied to facilities designed and constructed for first occupancy after January 26, 1993--eighteen months after the 1991 Standards were published by the Department.

The ANPRM presented three options for the effective date time period:  Option I, providing that the effective date of the proposed standards would be eighteen months after publication of the final rule; Option II, providing that the effective date of the proposed standards would be six months after publication of the final rule; or Option III, providing that the effective date of the proposed standards would be twelve months after publication of the final rule.

The Department received numerous comments on this issue.  The majority of business, trade, and government organizations advocated eighteen months or more from publication of the final rule.  In contrast, many disability advocacy groups and individuals argued that the revised regulation should be effective upon final publication, or very soon thereafter.  Many commenters asserted that the importance of providing increased accessibility for people with disabilities necessitates that the proposed standards become effective as soon as possible.

The current situation is substantially different from the conditions that prevailed in 1990 when the ADA was first enacted.  Covered entities are no longer dealing with a new statutory obligation.  Rather, the Department is dealing with a transition between two similar editions of the title III regulation.  Therefore, the Department proposes that covered entities must comply with the proposed standards for construction that begins six months after publication of the final rule as an appropriate balancing of stakeholder concerns.

This approach is consistent with the approach of other federal agencies that are in the process of adopting the 2004 ADAAG:  The Department of Transportation (DOT), which is generally responsible for the enforcement of title II of the ADA with respect to public transportation, and the General Services Administration (GSA), which has adopted the Access Board's Architectural Barriers Act (ABA) guidelines to replace the Uniform Federal Accessibility Standards (UFAS).  DOT's final rule adopting the 2004 ADAAG became effective shortly after publication.  See 71 FR 63263 (Oct. 30, 2006) (to be codified at 49 CFR part 37).  Likewise, GSA adopted an effective date of six months following publication of the final rule.  See 70 FR 67786 (Nov. 8, 2005).