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

Section 36.406(a)(2) Applicable Standards (Section-by-Section Analysis)

Section 306 of the ADA, 42 U.S.C. 12186, directs the Attorney General to issue regulations to implement title III that are consistent with the guidelines published by the Access Board.  Commenters suggested that the Department should not adopt the 2004 ADAAG, but should develop an independent regulation.  The Department is a statutory member of the Access Board and was actively involved in the development of the 2004 ADAAG.  Because of the Department's long involvement in the process to develop the 2004 ADAAG, the Department does not believe that it is necessary or appropriate to begin that lengthy process anew.  Nevertheless, during the process of drafting this NPRM, the Department has reviewed the 2004 ADAAG to determine if additional regulatory provisions are necessary.  As a result of this review, the Department has decided to propose new sections, which are contained in §§ 36.406(b)-(g), to clarify how the Department will apply the proposed standards to social service establishments, housing at places of education, assembly areas, and medical care facilities.  Each of these provisions is discussed below.        

The Department is proposing to adopt the proposed standards and to establish the effective date and triggering event for the new coverage.  Specifically, the Department is proposing to amend § 36.406(a) by dividing it into two sections.  Proposed § 36.406(a)(1) specifies that new construction and alterations subject to this part shall comply with the proposed standards if physical construction of the property commences less than six months after the effective date of the proposed rule.  Proposed § 36.406(a)(2) specifies that new construction and alterations subject to this part shall comply with the proposed standards if physical construction of the property commences six months or more after the effective date.  The Department is also proposing to delete the advisory information now published in a table at § 36.406(b).

The ANPRM gave notice that the Department must determine when the proposed standards will apply to newly constructed facilities following the publication of a final rule by establishing:  (1) The effective date after publication of the final rule; and (2) the triggering event for compliance with the proposed standards (i.e., the event or action that compels compliance with the proposed standards). 

Attachment A to this proposed rule is an analysis of the major changes in the proposed standards and a discussion of the public comments that the Department received on specific sections of the 2004 ADAAG.  In addition to those comments, the Department also received some comments that raised issues concerning the scope of the coverage of the proposed standards, the Department's decision to adopt them, and the established methods of interpretation.  Comments discussing the costs and benefits of the proposed standards will be addressed in the discussion of the Department's regulatory impact analysis.  Comments on the effect of the proposed standards on existing facilities will be discussed in conjunction with the analysis of § 36.304 of this proposed rule.  The remaining comments addressed global issues, such as the Department's proposal to adopt the 2004 ADAAG as the ADA Standards for Accessible Design without significant changes and the application of the proposed standards to employee areas.

Several commenters, including individual business owners and organizations representing business interests, questioned the application of the proposed standards to employee work areas, maintaining that all employment issues should be subject to title I of the ADA, 42 U.S.C. 12111 et seq.  These comments indicate a fundamental misunderstanding of the statutory scope of title III coverage and the scope of the 1991 Standards.

The commenters correctly observed that title I prohibits discrimination against individuals with disabilities employed in a business that has fifteen or more employees. Title III has no direct effect on that employer/employee relationship, but does establish requirements for the design, construction, or alteration of both public accommodations and commercial facilities, 42 U.S.C. 12183.   As the Department explained in the preamble to its 1991 NPRM to implement title III:

Commercial facilities are those facilities that are intended for nonresidential use by a private entity and whose operations affect commerce . . . . [T]he new construction and alteration requirements of subpart D of the [1991] rule apply to all commercial facilities, whether or not they are places of public accommodation.  Those commercial facilities that are not places of public accommodation are not subject to the requirements of subparts B and C (e.g., those requirements concerning auxiliary aids and general nondiscrimination provisions).

Congress recognized that the employees within commercial facilities would generally be protected under title I (employment) of the Act.  However, as the House Committee on Education and Labor pointed out, "[t]o the extent that new facilities are built in a manner that make[s] them accessible to all individuals, including potential employees, there will be less of a need for individual employers to engage in reasonable accommodations for particular employees." H.R. Rep. No. 101-485, Part 2, at 117 (1990) . . . . While employers of fewer than 15 employees are not covered by title I's employment discrimination provisions, there is no such limitation with respect to new construction covered under title III.  Congress chose not to so limit the new construction provisions because of its desire for a uniform requirement of accessibility in new construction, because accessibility can be accomplished easily in the design and construction stage, and because future expansion of a business or sale or lease of the property to a larger employer or to a business that is a place of public accommodation is always a possibility. 

56 FR 7455 (Feb. 22, 1991).  The Department's proposed rule merely continues this long-standing interpretation of title III's application to commercial facilities (and employee areas within public accommodations).  56 FR 35544, 35547 (July 26, 1991).

Several commenters suggested that the proposed standards would establish new requirements applicable to employee-only areas, such as restrooms, locker rooms, cafeterias, and break rooms.  These comments misunderstand the current law.  The 1991 Standards apply to the new construction of, or alteration to, commercial facilities (including employee areas of public accommodations), unless a specific exemption applies.  Employee common-use areas, such as those listed above, have been subject to title III and to subpart D of the implementing regulation, including the provisions in the 1991 Standards.  This coverage means that unless the area is subject to a specific exemption, it must comply with the Standards and it must be on an accessible route.  The proposed standards will not change that coverage.

The major change in the rule is in the treatment of employee work areas.  Under the 1991 Standards, section 4.1.1(3), areas used only as work areas are only required to permit a person using a wheelchair to approach, enter, and exit the area.  Because of public comment suggesting that owners of commercial facilities were not providing accessible routes within the facility, proposed section 206.2.8 contains a requirement to provide accessible common use circulation paths, subject to several exceptions.  Specific comments received on employee work areas are addressed in Appendix A.

Finally, one commenter suggested that the Department should adopt a system for providing formal interpretations of the ADA Standards for Accessible Design, analogous to the code interpretation systems used by the states and the major model codes. Because the ADA is a civil rights statute--rather than a building code--the statute does not contemplate or authorize a formal code interpretation system. The ADA anticipated that there would be a need for close coordination of the ADA building requirements with the state and local requirements.  Therefore, the statute authorized the Attorney General to establish an ADA code certification process, which is addressed in subpart F of this rule.

In addition, the Department operates an extensive technical assistance program. The Department anticipates that once this rule is final, it will revise its existing technical assistance materials to provide guidance about the implementation of this rule.

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).

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.