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

Safe harbor and other proposed limitations on barrier removal.

One of the most important issues that the Department must address is the effect that supplemental or changed ADA Standards will have on the continuing obligation of public accommodations to remove architectural, transportation, and communication barriers in existing facilities to the extent that it is readily achievable to do so.  This issue was not addressed in the 2004 ADAAG because it was outside the scope of the Access Board's authority under the ADA.  Responsibility for implementing title III's requirement that public accommodations eliminate existing architectural barriers where it is readily achievable to do so rests solely with the Department.

The Department's current regulation implementing title III of the ADA establishes the requirements for barrier removal by public accommodations. 28 CFR 36.304.  Under this requirement, the Department uses the 1991 Standards as a guide to identify what constitutes an architectural barrier, as well as the specifications that covered entities must follow in making architectural changes to the extent that it is readily achievable.  28 CFR part 36, App. B.  Once adopted, therefore, the 2004 ADAAG will present a new reference point for title III's requirement to remove architectural barriers in existing places of public accommodation. The Department is concerned that the incremental changes in the 2004 ADAAG may place unnecessary cost burdens on businesses that have already removed barriers by complying with the 1991 Standards in their existing facilities.

The Department seeks to strike an appropriate balance between ensuring that people with disabilities are provided access to buildings and facilities and potential financial burdens on existing places of public accommodation under their continuing obligation for barrier removal. Such a balance would not impose unnecessary financial burdens on existing places of public accommodation.

The Department's ANPRM raised several options that might reduce such financial burdens.  One approach, described in the ANPRM as Option I, is to establish a safe harbor with regard to elements in existing facilities that comply with the scoping and technical provisions in the 1991 Standards.  Specifically, the Department would deem that public accommodations have met their obligation for barrier removal with respect to any element in an existing facility if that element complies with the scoping and technical requirements in the 1991 Standards.  Another possible approach--Option II in the ANPRM--is to reduce the scoping requirements for some of the supplemental or changed requirements as they apply to existing facilities (e.g., play areas and recreational facilities).  Option III in the ANPRM proposed the exemption of certain elements in the proposed standards; under this option, the Department would determine that certain supplemental requirements are inappropriate for barrier removal.  After reviewing the public comments on the ANPRM, the Department has decided to propose a combination of Options I and II.  The specific proposals are addressed in the discussion of barrier removal in the section-by-section analysis of § 36.304 below.

The Department is not proposing to adopt Option III.  Instead, in keeping with its obligations under the SBREFA to consider regulatory alternatives, the Department is seeking public comment on an alternative suggested by advocates for small business. Under this alternative, the Department would revamp its approach to barrier removal that is readily achievable as applied to "qualified small business" entities, which are defined in § 36.104.

Small business advocates argued for clearer guidance on when barrier removal is, and is not, readily achievable.  According to the small business advocacy groups, the Department's current approach to readily achievable barrier removal disproportionately affects small businesses for the following reasons:  (1) Small businesses are more likely to operate in older buildings and facilities; (2) the 1991 Standards are too numerous and technical for most small business owners to understand and then to square with the ADA requirements with state and local building or accessibility codes; and (3) small businesses are particularly vulnerable to title III litigation and are often compelled to settle because they cannot afford the litigation costs involved in proving whether an action is readily achievable.  Advocates for small business endorsed many of the proposals in the ANPRM, such as the safe harbor and reduced scoping for some elements.

The proposed standards will go a long way toward meeting the concern of small businesses with regard to harmonizing federal and state requirements; the Access Board harmonized the 2004 ADAAG with the model codes that form the basis of most state and local accessibility codes.  Still, the Department is proposing that a qualified small business is presumed to have done what is readily achievable in a given year if, in the prior tax year, it spent a fixed percentage of its revenues on readily achievable barrier removal.  The Department believes that the efficacy of any such proposal will turn on two determinations:  (1) The definition of a qualified small business, and (2) the formula for calculating what percentage of revenues should be sufficient to satisfy the readily achievable presumption.  The Department discusses its proposal for safe harbor and reduced scoping requirements in the section-by-section analysis of § 36.304.

The Department invites comment on whether public accommodations that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG.  Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in:  (1) The Access Board's supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002).  Under that scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements.  Public accommodations that operate existing facilities with play or recreation areas, pursuant to the ADA's requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.

Question 7: Should the Department exempt owners and operators of public accommodations from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law?  Please provide information on the effect of such a proposal on people with disabilities and places of public accommodation.