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: Triggering event. (Section-by-Section Analysis)

In the ANPRM, the Department suggested "first use" as an alternative triggering event for facilities that do not require building permits or that do not receive certificates of occupancy.  The Department received many comments in response to this suggestion, as well as criticisms of the current triggering event for new construction under title III.  Some commenters noted that permitting requirements for construction projects covered by title III vary across both states and localities.  For example, some jurisdictions in Iowa do not have building codes applying to title III entities, while Kentucky and Chicago do not require building permits and certificates of occupancy for construction under certain monetary thresholds. Owners and operators of play areas and recreational facilities commented that the permitting process for such projects, when it exists, is different from those involving typical buildings.  Specifically, the current title III triggering events are ill-suited for application to many elements of golf and miniature golf sites, amusement rides and attractions, playgrounds, park facilities without electricity, and similar entities.

The information provided by commenters indicates that the first-use approach would not provide adequate guidance on when the proposed standards would apply to certain facilities and elements.  Several commenters suggested the start of construction as the triggering event because it would eliminate confusion over facilities that do not require permitting.  Using the start of construction as the triggering event would harmonize title III's requirements for new construction with the requirements for new construction and alterations under title II and alterations under title III.  Several commenters on this issue urged the Department to use the same triggering events for title II and title III.

The Department has been persuaded by these comments to propose a triggering event paralleling that for the alterations provisions (i.e., the date on which construction begins).  This would apply clearly across all types of covered public accommodations, and the Department plans to clarify what constitutes the start of construction based on responses to this NPRM.  This approach poses fewer problems than the first-use approach by measuring only the date on which physical construction commences.

For prefabricated elements such as modular buildings and amusement park rides and attractions, or installed equipment such as ATMs, the Department proposes that the start of construction means the date on which the site preparation begins.  Site preparation includes providing an accessible route to the element.

Question 50:  The Department proposes using the start of construction as the triggering event for applying the proposed standards to new construction under title III.  The Department asks for public comment on how to define the start of construction and the practicality of applying commencement of construction as a triggering event.  Is the proposed definition of the start of construction sufficiently clear and inclusive of different types of facilities?  Please be specific about the situations that are not covered in the proposed definitions, and suggest alternatives or additional language.  In addition, the Department asks that the public identify facilities subject to title III for which commencement of construction would be ambiguous or problematic.