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

The Advance Notice of Proposed Rulemaking

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, for two reasons:  (1) To begin the process of adopting the Access Board's 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in OMB Circular A-4, available at http://www.whitehouse.gov/omb/circulars/a004/a-4.pdf, Sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs).  While underscoring that the Department, as a member of the Access Board, had already reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (like the program access requirement in title II) is solely within the discretion of the Department.  The ANPRM dealt with the Department's responsibilities under both title II and title III.

Public response to the ANPRM was extraordinary.  The Department extended the comment deadline by four months at the public's request.  70 FR 2992 (Jan. 19, 2005).  By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues.  Most of the comments responded to questions specifically posed by the Department, including issues involving the application of the 2004 ADAAG once the Department adopts it and cost information to assist the Department in its regulatory assessment.  The public provided information on how to assess the cost of elements in small facilities, office buildings, hotels and motels, assembly areas, hospitals and long-term care facilities, residential units, recreational facilities, and play areas. Comments addressed the effective date of the proposed standards, the triggering event by which the effective date is measured in new construction, and variations on a safe harbor that would excuse elements built in compliance with the 1991 Standards from compliance with the proposed standards.  Comments responded to questions regarding elements scoped for the "first time" in the 2004 ADAAG, including detention and correctional facilities, recreational facilities, and play areas, as well as proposed additions to the Department's regulation for items such as free-standing equipment.  Comments also dealt with specific requirements in the 2004 ADAAG.

Many commenters requested clarification of or changes to the Department's title III regulation.  Commenters observed that now, more than seventeen years after enactment of the ADA, as facilities are becoming physically accessible to individuals with disabilities, the Department needs to focus on second generation issues that ensure that individuals with disabilities can actually gain access to and use the accessible elements.  So, for example, commenters asked the Department to focus on such issues as ticketing in assembly areas and reservations for hotel rooms, rental cars, and boat slips.  The public asked about captioning and the division of responsibility between the Department and the Access Board for fixed and non-fixed (or free-standing) equipment. Finally, commenters asked for clarification on some issues in the existing regulations, such as title III's requirements regarding service animals.

All of the issues raised in the public comments are addressed, in turn, in this NPRM or in the NPRM for title II.  Issues involving title II of the ADA, such as the exhaustion of administrative remedies under the Prison Litigation Reform Act (PLRA), 42 U.S.C. 1997e et seq., are addressed in the Department's NPRM for title II in this issue of the Federal Register, published concurrently with this NPRM.