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

Reduced scoping for public accommodations, small facilities, and qualified small businesses. (Section-by-Section Analysis)

As noted above, the Department is still considering the possibility of developing an alternative set of reduced scoping requirements for certain elements that were not subject to specific scoping and technical requirements in the 1991 Standards.  Business entities were generally in favor of exemptions and reduced scoping, although most of the comments addressed elements in compliance with technical and scoping requirements in the 1991 Standards (e.g., the maximum side reach range).  Disability advocacy groups and individuals strongly objected to exemptions and to significantly reduced scoping, arguing that the 2004 ADAAG represents minimum standards, and that the readily achievable standard already provides enough flexibility to covered entities.

The Department believes that reduced scoping for a select few specifications in the context of barrier removal is a moderate and reasonable response to business entities' concerns about the potential for increased costs of compliance and litigation risk when the Department adopts the 2004 ADAAG.  Reduced scoping reflects the determination that, while some requirements make sense for alterations and new construction, in the barrier removal context they might not because of the expense or nature of the measure required.  Given the disparity in size and resources among the entities that fall within the ambit of public accommodations, reduced scoping would be justified only for supplemental elements that are particularly complicated and expensive to retrofit.  Based on comments in the ANPRM and the Department's initial regulatory assessment, the Department has identified ten elements for which the Department believes reduced scoping might be appropriate for barrier removal:  play areas, swimming pools, wading pools, saunas and steam rooms, exercise machines, team or player seating areas, areas of sport activity, boating facilities, fishing piers and platforms, and miniature golf courses.