28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities (2010 ADA Title III Regulations with amendments issued through Dec. 2016)

Final Regulatory Flexibility Analysis

This final rule also has been reviewed by the Small Business Administration’s Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates that the final rule will not have a significant economic impact on a substantial number of small entities. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards include all of the elements of a FRFA required by the RFA. See 5 U.S.C. 604(a) (1)–(5).

Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following:

1. Succinct summaries of the need for, and objectives of, the final rule. The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title III regulation so that they are consistent with the title II regulations and comport with the Department’s legal and practical experiences in enforcing the ADA.

The ADA requires the Department to adopt enforceable accessibility standards under the  ADA that are consistent with the Access Board’s minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department’s title II and title III regulations.

Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action. See preamble sections of the final rules for titles II and III entitled ‘‘Summary’’; Department of Justice Advanced Notice of Proposed Rulemaking, 69 FR 58768, 58768B70, (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying the Department’s proposal to revise its regulations implementing titles II and III of the ADA); and Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34508B14 (June 17, 2008) (outlining the regulatory history and rationale underlying the Department’s proposal to revise its regulations implementing titles II and III of the ADA).

2. Summaries of significant issues raised by public comments in response to the Department’s initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments. The majority of the comments received by the Department addressing its IRFA set forth in the title III NPRM were submitted by the Advocacy. Advocacy acknowledged that the Department took into account the comments and concerns of small businesses; however, Advocacy remained concerned about certain items in the Department’s NPRM and requested clarification or additional guidance on certain items.

General Safe Harbor. Advocacy expressed support for the Department’s proposal to allow an element-by-element safe harbor for elements that now comply with the 1991 Standards and encouraged the Department to include specific technical assistance in the Small Business Compliance Guide that the Department is required to publish pursuant to section 212 of the SBREFA, 5 U.S.C. 610 et seq. Advocacy requested that technical assistance outlining which standards are subject to the safe harbor be included in the Department’s guidance. The Department has provided a list of the new requirements in the 2010 Standards that are not eligible for the safe harbor in § 36.304(d)(2)(iii)(A)–(L) of the final rule and plans to include additional information about the application of the safe harbor in the Department’s Small Business Compliance Guide. Advocacy also requested that guidance regarding the two effective dates for regulations also be provided, and the Department plans to include such guidance in its Small Business Compliance Guide.

Small Business Safe Harbor. Advocacy expressed disappointment that the Department did not include a small business safe harbor in the final rule. In the NPRM, the Department proposed to include a small business safe harbor. Advocacy conceptually supported this safe harbor but had concerns regarding its application. Commenters from both the disability community and the business community uniformly, and quite adamantly, opposed the Department’s proposal. Some business commenters suggested alternative safe harbors, but there was no common thread among their suggestions that would enable the Department to craft a proposal that would draw support from the affected communities.

Advocacy recommended that the Department continue to study how the proposed small business safe harbor might be made workable in future rulemakings, and recommended that the Department also seek other alternatives that minimize the economic impact of the ADA rulemakings in the future. The Department is mindful of its obligations under the SBREFA and will be sensitive to the need to mitigate costs for small businesses in any future rulemaking; however, based on the information currently available, the Department has declined to commit to a specific regulatory approach in the final rule.

Indirect Costs. Advocacy and other commenters representing business interests expressed concern that businesses would incur substantial indirect costs under the final rule for accessibility consultants, legal counsel, training, and the development of new policies and procedures. The Department believes that such ‘‘indirect costs,’’ even assuming they would occur as described by these commenters, are not properly attributed to the Department’s final rule implementing the ADA.

The vast majority of the new requirements are incremental changes subject to a safe harbor. All businesses currently in compliance with the 1991 Standards will neither need to undertake further retrofits nor require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are not currently in compliance with the 1991 Standards, then the cost of making such a determination and bringing these elements into compliance are not properly attributed to the final rule, but to lack of compliance with the 1991 Standards.

For the limited number of requirements in the final rule that are supplemental, the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (e.g., a swimming pool) and then conduct any necessary barrier removal work either in-house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, Chapter 5 of the Final RIA has a high-end estimate of the additional management costs of such evaluation(from 1 to 8 hours of staff time).

The Department also anticipates that businesses will incur minimal costs for accessibility consultants to ensure compliance with the new requirements for New Construction and Alterations in the final rule. Both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into design plans by architects and builders. Further, in adopting the final rule, the Department has sought to harmonize, to the greatest extent possible, the ADA Standards with model codes that have been adopted on a widespread basis by State and local jurisdictions across the country. Accordingly, many of the requirements in the final rule are already incorporated into building codes nationwide. Additionally, it is assumed to be part of the regular course of business—and thereby incorporated into standard professional services or construction contracts—for architects and contractors to keep abreast of changes in applicable Federal, State, and local laws and building codes. Given these considerations, the Department has determined that the additional costs, if any, for architectural or contractor services that arise out of the final rule should be minimal.

Some commenters stated that the final rule would require them to develop new policies or manuals to retrain employees on the revised ADA standards. However, it is the Department’s view that because the revised and supplemental requirements address architectural issues and features, the final rule would require minimal, if any, changes to the overall policies and procedures of covered entities.

Finally, commenters representing business interests expressed the view that the final rule would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law. See Final RIA, Ch. 3, section 3.1.4, ‘‘Other Management Transition Costs’’; Ch. 5,‘‘Updates to the Regulatory Impact Analysis’’; and table 15, ‘‘Impact of NPV of Estimated Managerial Costs for Supplemental Requirements at All Facilities.’’

3. Estimates of the number and type of small entities to which the final rule will apply. The Department estimates that the final rule will apply to approximately three million small entities or facilities covered by title III. See Final RIA, Ch. 7, ‘‘Small Business Impact Analysis,’’ table 17, and app. 5, ‘‘Small Business Data’’; see also 73 FR 36964, 36996–37009 (June 30, 2008) (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of the rule on small facilities/entities versus ‘‘typical’’ (i.e., average-sized facilities/entities).

4. A description of the projected reporting, record-keeping, and other compliance requirements of the final rule, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. The final rule imposes no new recordkeeping or reporting requirements. See preamble section entitled ‘‘Paperwork Reduction Act.’’ Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, ‘‘Small Business Impact Analysis’’ and accompanying Appendix 5, ‘‘Small Business Data.’’

5. Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rule and for rejecting other significant alternatives. From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small businesses. Several of these steps are summarized below.

As an initial matter, the Department— as a voting member of the Access Board—was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small businesses in several  respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small businesses. Second, the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of private and public entities, including small business groups, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board’s Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest. See, e.g., ‘‘ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and Outdoor Developed Areas,’’ Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses, expressed significant concern that such requirements would be prohibitively expensive, would require additional space, and might fundamentally alter the nature of their courses. See, e.g., ‘‘ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities,’’ Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space required for start of play areas. See, e.g., Americans with Disabilities Act (ADA) Accessibility Guidelines for Buildings and Facilities—Recreation Facilities Final Rule, 36 CFR parts 1190 and 1191.

The Department also published an ANPRM to solicit public input on the adoption of the 2004 ADAAG as the revised Federal accessibility standards implementing titles II and III of the ADA. Among other things, the ANPRM specifically invited comment from small entities regarding the proposed rule’s potential economic impact and suggested regulatory alternatives to ameliorate any such impact. See ‘‘Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,’’ Department of Justice Advance Notice of Proposed Rulemaking, 69 FR 58768, 58778–79 (Sept. 30, 2004). The Department received over 900 comments, and small business interests figured prominently. See ‘‘Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities,’’ Department of Justice Notice of Proposed Rulemaking, 73 FR 34508, 34511, 34550 (June 17, 2008).

Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by the small business community in ANPRM comments. First, to mitigate costs to existing facilities, the Department proposed an element-by-element safe harbor that would exempt elements in compliance with applicable technical and scoping requirements in the 1991 Standards from any retrofit obligations under the revised title III rule. Id. at 34514–15, 34532–33. While this proposed safe harbor applied to title III covered entities irrespective of size, it was small businesses that especially stood to benefit since, according to comments from small business advocates, small businesses are more likely to operate in older buildings and facilities. The title III NPRM also offered for public comment a novel safe harbor provision specifically designed to address small business advocates’ request for clearer guidance on the readily achievable barrier removal requirement.

This proposal provided that qualified small businesses would be deemed to have satisfied their readily achievable barrier removal obligations for a given year if, during that tax year, they had spent at least 1 percent of their respective gross revenues undertaking measures in compliance with title III barrier removal requirements. Id. at 34538–39. Lastly, the NPRM sought public input on the inclusion of reduced scoping provisions for certain types of small existing recreation facilities (i.e., swimming pools, play areas, and saunas). Id. at 34515, 34534–37.

During the NPRM comment period, the Department engaged in considerable public outreach to the small business community. A public hearing was held in Washington, D.C., during which nearly 50 persons, including several small business owners, testified in person or by phone. See Transcript of the Public Hearing on Notices of Proposed Rulemaking (July 15, 2008), available at www.ada.gov/NPRM2008/ public_hearing_transcript.htm. This hearing was also streamed live over the Internet. By the end of the 60-day comment period, the Department had also received nearly 4,500 public comments on the title III NPRM, including a significant number of comments reflecting small businesses’ perspectives on a wide range of regulatory issues.

In addition to soliciting input from small entities through the formal process for public comment, the Department also targeted the small business community with less formal regulatory discussions, including a Small Business Roundtable convened by the Office of Advocacy and held at the offices of the Small Business Administration in Washington, D.C., and an informational question-and-answer session concerning the titles II and III NPRMs at the Department of Justice in which business representatives attended in-person and by telephone. These outreach efforts provided the small business community with information on the NPRM proposals being considered by the Department and gave small businesses the opportunity to ask questions of the Department and provide feedback.

As a result of the feedback provided by representatives of small business interests on the title III NPRM, the Department was able to assess the impact of various alternatives on small businesses before adopting its final rule and took steps to minimize any significant impact on small entities. Most notably, the final rule retains the element-by-element safe harbor for which the small business community voiced strong support. See Appendix A discussion of removal of barriers (§ 36.304). The Department believes that this element-by-element safe harbor provision will go a long way toward mitigating the economic impact of the final rule on existing facilities owned or operated by small businesses. Indeed, as demonstrated in the Final RIA, the element-by-element safe harbor will provide substantial relief to small businesses that is estimated at $ 7.5 billion over the expected life of the final rule.

Additional regulatory measures mitigating the economic impact of the final rule on title III-covered entities (including small businesses) include deletion of the proposed requirement for captioning of safety and emergency information on scoreboards at sporting venues, retention of the proposed path of travel safe harbor, extension of the compliance date of the 2010 Standards as applied to new construction and alterations from 6 months to 18 months after publication of the final rule, and, in response to public comments, modification of the triggering event for application of the 2010 Standards to new construction and alterations from a unitary approach (commencement of physical construction) to a two-pronged approach (date of last application for building permit or commencement of physical construction) depending on whether a building permit is or is not required for the type of construction at issue by State or local building authorities. See Appendix A discussions of captioning at sporting venues (§36.303), alterations and path of travel (§ 36.403), and compliance dates and triggering events for new construction and alterations (§ 36.406).

Two sets of proposed alternative measures that would have potentially provided some cost savings to small businesses—the safe harbor for qualified small businesses and reduced scoping for certain existing recreation facilities—were not adopted by the Department in the final rule. As discussed in more depth previously, the safe harbor for qualified small businesses was omitted from the final rule because the general safe harbor already provides significant relief for small businesses located in existing facilities, the proposed safe harbor provision lacked support from the small business community and no consensus emerged from business commenters concerning feasible bases for the final regulatory provision, and commenters noted practical considerations that would potentially make some small businesses incur greater expense or administrative burden. See Appendix A discussion of the safe harbor for qualified small businesses (§ 36.304).

The Department also omitted the proposals to reduce scoping for certain existing recreation facilities in the final rule. While these proposals were not specific to small entities, they nonetheless might have mitigated the impact of the final rule for some small businesses that owned or operated existing facilities at which these recreational elements were located. See Appendix A discussion of reduced scoping for play areas and other recreation facilities (§ 36.304). The Department gave careful consideration to how best to insulate small businesses from overly burdensome barrier removal costs under the 2010 Standards for existing small play areas, swimming pools, and saunas, while still providing accessible and integrated recreation facilities that are of great importance to persons with disabilities. The Department concluded that the existing readily achievable barrier removal standard, rather than specific exemptions for these types of existing facilities, is the most efficacious method by which to protect small businesses.

Once the final rule is promulgated, small businesses will also have a wealth of documents to assist them in complying with the 2010 Standards. For example, accompanying the final rule in the Federal Register is the Department's‘‘Analysis [sic] and Commentary on the 2010 ADA Standards for Accessible Design,’’ which provides a plain language description of the revised scoping and technical requirements in these Standards and provides illustrative figures. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. Additionally, the Access Board has published a number of guides that discuss and illustrate application of the 2010 Standards to play areas and various types of recreation facilities.