30174 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

1Section 35.150(b)(1) of the title II regulation, 

which addresses program accessibility in existing 

facilities, provides state and local governments with 

flexibility to use other means such as acquisition or 

redesign of equipment, or reassignment of programs 

or services to accessible buildings, in lieu of making 

structural alterations to facilities when they are 

providing program accessibility in their existing 

programs, services, or activities. 

2Section 36.304(d)(1) requires covered entities to 

apply the alterations provisions of the regulations 

(except the path of travel provisions) when 

removing barriers, but only to the extent that it is 

readily achievable to do so. Section 36.304(d)(2)(iii) 

provides that elements in existing facilities that are 

subject to the supplemental requirements, including 

the accessible means of entry requirements for 

pools and spas, must be modified to the extent 

readily achievable to comply with the 2010 

Standards. 

DEPARTMENT OF JUSTICE 

28 CFR Parts 35 and 36 

[CRT Docket No. 123; A.G. Order No. 3332– 

2012] 

RIN 1190–AA69 

Amendment of Americans With 

Disabilities Act Title II and Title III 

Regulations To Extend Compliance 

Date for Certain Requirements Related 

to Existing Pools and Spas Provided 

by State and Local Governments and 

by Public Accommodations 

AGENCY: Department of Justice, Civil 

Rights Division. 

ACTION: Final rule. 

SUMMARY: This final rule revises the 

Department of Justice regulations 

implementing the Americans with 

Disabilities Act to extend until January 

31, 2013, the compliance date for the 

application of sections 242 and 1009 of 

the 2010 Americans with Disabilities 

Act (ADA) Standards for Accessible 

Design for existing pools and spas. 

DATES: Effective Date: This rule will take 

effect on May 21, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Allison Nichol, Chief, Disability Rights 

Section, Civil Rights Division, U.S. 

Department of Justice, at (202) 307–0663 

(voice or TTY). This is not a toll-free 

number. Information may also be 

obtained from the Department’s toll-free 

ADA Information Line at (800) 514– 

0301 (voice) or (800) 514–0383 (TTY). 

SUPPLEMENTARY INFORMATION: 

Background 

The Department of Justice published 

its revised final regulations 

implementing the Americans with 

Disabilities Act (ADA) for title II (State 

and local government services) and title 

III (public accommodations and 

commercial facilities) on September 15, 

2010. See 75 FR 56164, 56236 

(September 15, 2010). The revised ADA 

rules were the result of a six-year 

process to update the Department’s 

ADA regulations. As part of this 

process, the Department sought public 

comment, issuing an Advance Notice of 

Proposed Rulemaking (ANPRM) on 

September 30, 2004, 69 FR 58768, and 

two Notices of Proposed Rulemaking 

(NPRM) on June 17, 2008, 73 FR 34466 

(title II) and 73 FR 34508 (title III). The 

Department also held a public hearing 

on the NPRMs and received more than 

4,435 written public comments. This 

process culminated with publication of 

the Department’s final rules on 

September 15, 2010. 

As part of this revision, the 

Department adopted the 2010 ADA 

Standards for Accessible Design (‘‘2010 

Standards’’). A copy of the 2010 ADA 

Standards is available at http:// 

www.ada.gov/ 

2010ADAstandards_index.htm. The 

2010 Standards replace the 1991 ADA 

Standards for Accessible Design and, for 

the first time, contain specific 

accessibility requirements for certain 

types of recreational facilities, including 

the requirement to provide accessible 

means of entry and exit to swimming 

pools, wading pools, and spas. With 

limited exceptions, the Department’s 

revised ADA title II and title III 

regulations went into effect on March 

15, 2011. The regulations provided that 

covered entities were not obligated to 

comply with the 2010 Standards until 

March 15, 2012 (the compliance date). 

The 2010 Standards are based in large 

part on the 2004 ADA Accessibility 

Guidelines, which were adopted by the 

United States Access Board (‘‘Access 

Board’’) in 2004 following a decade-long 

effort to revise the Board’s 1991 ADA 

Accessibility Guidelines. See 69 FR 

44084 (July 23, 2004). The ADA requires 

the Department to issue regulations that 

include enforceable accessibility 

standards applicable to facilities subject 

to title II or title III that are consistent 

with the ‘‘minimum guidelines’’ issued 

by the Access Board, 42 U.S.C. 12134(c), 

12186(c). The Attorney General has sole 

responsibility for promulgating 

accessibility standards that fall within 

the Department’s jurisdiction and 

enforcing the Department’s regulations, 

which include the accessibility 

standards. 

The 2010 Standards set minimum 

scoping and technical requirements for 

accessible means of entry (and exit) for 

newly constructed and altered 

swimming pools, wading pools, and 

spas (collectively, ‘‘pools’’). The 2010 

Standards include requirements for 

accessible means of entry for large and 

small pools. These requirements are 

found at sections 242 and 1009 of the 

2010 Standards. Specifically, section 

242 provides that large pools (pools 

with 300 linear feet of pool wall or 

more) must have two accessible means 

of entry, one of which must be a pool 

lift or sloped entry; the other accessible 

means of entry include a transfer wall, 

transfer system, or pool stairs. Small 

pools (pools with less than 300 linear 

feet of pool wall) must provide at least 

one accessible means of entry, which 

must be either a pool lift or a sloped 

entry. 

The 2010 Standards also provide 

details about what features an accessible 

means of entry should include. 

Specifically, section 1009 addresses 

pool lift requirements such as the 

location, size of the seat, lifting 

capacity, and clear floor space, as well 

as the requirements for sloped entry, 

transfer wall, transfer system, or pool 

stairs. 

Sections 35.151(d) and 36.406(b) of 

the respective title II and title III 

regulations specify that the 2010 

Standards only apply to fixed or builtin elements. Sections 35.151(c) and 

36.406(a) provide that the 2010 

Standards apply to new construction 

and alterations of covered buildings and 

facilities. 

With regard to existing facilities, the 

title II rule published in 2010 provided 

that, as of March 15, 2012, the 2010 

Standards apply whenever public 

entities choose to meet their title II ADA 

program accessibility obligations by 

making structural alterations to their 

existing facilities, 28 CFR 35.150(b)(1).1

The title III rule published in 2010 

provided that on or after March 15, 

2012, public accommodations must 

generally use the 2010 Standards as the 

benchmark for their ongoing obligation 

to remove architectural barriers in 

existing facilities to the extent such 

compliance is readily achievable. 28 

CFR 36.304(d).2 As discussed below, 

with respect to the provision of title II 

program accessibility and title III readily 

achievable barrier removal, the 

Department has postponed the 

compliance date for the specific 

requirements in the 2010 Standards 

relating to accessible means of entry for 

existing pools until May 21, 2012. 

Under the ADA, the Department is 

responsible for providing technical 

assistance to entities covered by titles II 

and III to help them understand their 

obligations under the ADA. 42 U.S.C. 

12206(c)(1). Since issuing its revised 

rule, the Department has developed and 

published technical assistance 

documents to assist entities to 

understand the revised regulations. To 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30175 

3See 77 FR at 16163 (‘‘Effective on March 15, 

2012, the compliance date for 28 CFR 35.150(b)(1), 

(b)(2)(ii), and 28 CFR 36.304(d)(2)(iii) for sections 

242 and 1009 of the 2010 Standards is delayed to 

May 21, 2012.’’). The referenced sections in 28 CFR 

for which the compliance date was delayed apply 

only to existing facilities, not to new construction 

or alterations. 

help educate pool owners and operators 

concerning the requirements imposed 

by the Department’s 2010 regulations, 

the Civil Rights Division published a 

technical assistance document entitled 

‘‘ADA 2010 Revised Requirements: 

Accessible Pools—Means of Entry and 

Exit’’ (the ‘‘TA Document’’) on January 

31, 2012. Available at http:// 

www.ada.gov/pools_2010.htm. This 

document provided an overview of the 

new accessibility requirements for pools 

and discussed the application of the 

requirements in the context of the 

longstanding obligations of covered 

entities to provide readily achievable 

barrier removal (title III) and program 

accessibility (title II). 

Inquiries received by the Department 

both prior to the TA Document’s 

publication and in response to the TA 

Document revealed that there were 

significant concerns and 

misunderstandings among a substantial 

number of pool owners and operators 

with respect to what was required for 

title III entities in order to engage in 

readily achievable barrier removal, or 

for title II entities to provide program 

accessibility with respect to their 

existing pools now that the ADA 

regulations included minimum scoping 

and technical requirements for 

accessible means of entry for pools. 

Some pool owners and operators 

believed that taking certain steps would 

always satisfy their obligations when in 

fact those steps would not necessarily 

result in compliance with the ADA 

regulations. For example, some pool 

owners and operators believed, 

incorrectly, that providing non-fixed 

lifts (lifts that are not attached to the 

pool deck and often referred to as 

portable lifts) would in all 

circumstances achieve compliance with 

the ADA regulations, even in 

circumstances where providing a fully 

compliant lift is readily achievable. 

Others expressed the view that they 

would have to close pools due to an 

inability to provide access, even though 

the regulations allow pool owners and 

operators to use non-fixed lifts or no 

lifts at all in circumstances where the 

provision of access is not readily 

achievable. The vast majority of pool 

owners and operators expressing these 

concerns were title III entities. 

Recognizing the extent of the 

misunderstandings in determining 

appropriate compliance when faced 

with an immediate compliance date, 

and consistent with Executive Order 

13563, ‘‘Improving Regulation and 

Regulatory Review’’ (with its emphasis 

on promoting predictability and public 

participation), the Department 

determined that it would be 

impracticable and contrary to the public 

interest to retain the March 15, 2012, 

compliance date for application of these 

requirements to existing pools. 77 FR 

16163, 16164 (March 20, 2012). Thus, 

the Department issued a Final Rule 

extending the date for compliance with 

sections 242 and 1009 of the 2010 

Standards as they relate to existing 

pools (pools built before March 15, 

2012) from March 15, 2012, to May 21, 

2012. 77 FR 16163, 16163 (March 20, 

2012).3 The Department’s action had no 

effect on the compliance date for these 

requirements as they applied to newly 

constructed pools or pools altered for 

purposes other than to provide program 

accessibility or barrier removal (e.g., 

scheduled alterations or improvements). 

Contemporaneously with issuing the 

rule extending the compliance date for 

existing pools until May 21, 2012, the 

Department issued an NPRM seeking 

public comment regarding whether a 

longer extension of the compliance date 

would be appropriate to allow pool 

owners and operators additional time to 

meet their obligations with regard to 

providing access into their existing 

pools. 77 FR 16196 (March 20, 2012). 

Specifically, the Department requested 

comment on a proposed extension that 

would postpone the required 

compliance date for sections 242 and 

1009 of the 2010 Standards until 

September 17, 2012—a total of just over 

180 days from the original March 15, 

2012, compliance date specified in the 

September 2010 final regulations. The 

NPRM proposed that this extension 

would ‘‘provide pool owners and 

operators additional time to evaluate 

and comply with their program 

accessibility and readily achievable 

barrier removal obligations with respect 

to sections 242 and 1009 of the 2010 

Standards.’’ 77 FR at 16198. The 

Department also anticipated that an 

extension would serve ‘‘the interest of 

promoting clear and consistent 

application of the ADA’s requirements 

to existing facilities.’’ 77 FR at 16196. 

The proposed extension would have no 

impact on the March 15, 2012, 

compliance date for new construction 

and alterations of swimming pools and 

spas. In addition, the NPRM made it 

clear that, although the Department was 

considering extending the compliance 

date for the application of the 

requirements to existing pools, the 

NPRM was not proposing to change 

those requirements or modify the ADA 

regulations in any other way and, thus, 

the Department was not soliciting 

comments on the merits of the 

requirements. 77 FR at 16197. 

Discussion of Public Comments 

In response to its proposal, the 

Department received approximately 

1,915 public comments from 

individuals with disabilities, 

organizations representing individuals 

with disabilities, pool owners and 

operators, and other entities covered by 

the regulations. Approximately 1,420 

commenters supported the proposal and 

approximately 495 commenters opposed 

it. While the vast majority of 

commenters were concerned about the 

impact of the requirements on title III 

public accommodations, there were 

some comments from title II entities. 

Organizations representing the hotel 

industry and individual owners and 

operators of hotels and campgrounds 

provided the largest number of 

comments in support of postponing the 

compliance date. Of these comments, 

approximately 520 were form comments 

submitted anonymously. Other 

commenters who supported the 

proposal included homeowners 

associations, pool lift manufacturers, 

individual owners and operators of 

pools and spas, and some title II 

entities. Commenters opposed to the 

proposed extension included many 

organizations representing persons with 

disabilities, including veterans with 

disabilities, numerous individuals with 

disabilities, and some title II entities. 

Many comments illustrated the kinds of 

misunderstandings and concerns that 

led to the Department’s decision to 

propose the extension. This final rule 

will not address specific comments 

about the merits of the requirements for 

accessible means of entry for pools, 

except to the extent that they illustrate 

these misunderstandings or provide 

support or opposition for the proposed 

compliance date extension. 

The Department received numerous 

comments opposing a further extension 

of the effective date for the provisions 

requiring an accessible means of entry 

for existing pools. Commenters with 

disabilities and their families, as well as 

organizations representing individuals 

with disabilities, urged the Department 

not to extend the deadline further. 

These commenters provided a variety of 

reasons why the deadline should not be 

extended. Some commenters objected 

on the grounds that the regulatory 

process, which included numerous 

opportunities for public comment, had 

yielded carefully constructed 

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30176 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

4Moreover, the Regulatory Impact Analysis (RIA) 

for the final rule looked at the costs with respect 

to fixed and built-in elements when analyzing the 

provisions of the 2010 Standards. With respect to 

pools, the RIA included both the cost of purchasing 

a lift as well as the cost of installing the lift for 

barrier removal in existing pools. See Final RIA at 

pp. 59–60, 283 (July 23, 2010), available at http:// 

www.ada.gov/regs2010/RIA_2010regs/ 

DOJ%20ADA%20Final%20RIA.pdf. 

regulations and accessibility standards. 

Several commenters noted that entities 

have had nearly two years to plan for 

and comply with the revised 

requirements for access into existing 

pools and, thus, additional time was 

unnecessary. One organization 

representing individuals with 

disabilities noted that the barrier 

removal concept has not changed since 

the ADA was passed in 1990 and that 

title III entities have had over 20 years 

and extensive technical assistance on 

the concept to understand their 

obligations. The organization believed 

an additional four months would not 

yield a better understanding. The same 

organization felt strongly that the 

extension was inappropriate for title II 

entities, which have long been required 

to address access into their existing 

pools under the program access 

requirement. 

Many commenters emphasized the 

negative impact that an extension would 

have for individuals with disabilities. 

Commenters stated that an extension 

would require them to continue to pay 

full price for a hotel room during the 

extension period while not having full 

access to the amenities of the facilities. 

One commenter took issue with the 

categorization of pool access as a 

luxury, stating that access to other 

amenities, such as restaurants, could 

similarly be considered luxuries, yet 

access to such amenities is required for 

all paying customers. 

Some of the most moving comments 

came from families with individuals 

with disabilities. Parents of children 

with disabilities shared their stories of 

how their children were getting too big 

for them to carry in and out of the pool 

safely or with dignity. Several recounted 

how their older children loved to swim 

and wanted to partake in family outings 

to the pool, but then explained that it 

was difficult to safely transfer a wet and 

slippery child across a slick pool deck. 

Parents with disabilities also lamented 

their inability to join their children in 

the pool. For these families, an 

extension of the compliance date for the 

pool requirements would mean another 

year of summer vacations without 

access. 

The Department also heard from 

organizations representing veterans with 

disabilities who indicated that, after a 

decade of war, a significant number of 

service members have returned with 

injuries and are reintegrating into their 

communities by participating in 

adaptive sports and that these 

individuals should have access to pools 

and spas in their communities without 

further delay. One veteran with a 

disability stated that he had very few 

methods of exercise that he could use to 

stay in shape and expressed frustration 

about having to travel long distances to 

a pool with a compliant lift for his 

weekly swim. Many other commenters 

also stated that swimming was one of 

the few exercises available to many 

individuals with disabilities and that 

the extension would further delay pool 

access that has been long sought. 

Several state-level advisory 

organizations on disability issues 

provided comments opposing the 

extension. These organizations stated 

that they believed that there had been 

ample time for title II and title III 

entities to comply and that delaying 

implementation further would 

constitute a roll-back of the ADA. These 

organizations were especially concerned 

about the resistance of public 

accommodations in their states to 

implement the new requirements and 

the impact this would have on residents 

and visitors with disabilities. 

The Department also received 

numerous comments supporting a 

further extension of the effective date 

for the provisions requiring an 

accessible means of entry for existing 

pools, primarily as they apply to the 

obligations of title III entities to engage 

in barrier removal. Many of these 

commenters supported a longer 

extension for the compliance period, for 

a minimum of six additional months. 

These commenters believed that an 

extension of the compliance date was 

necessary in order to give public 

accommodations sufficient time to fully 

understand and implement the pool 

access requirements and to arrange for 

installation of fixed lifts (lifts that are 

attached to the pool deck), given that 

many pool owners and operators had 

previously believed that portable lifts 

were permissible even when it was 

readily achievable to provide a fixed lift. 

Two other categories of comments, 

primarily provided by owners and 

operators of pools at public 

accommodations who supported the 

Department’s proposal to extend the 

compliance date, further underscored 

the misunderstandings and concerns 

that have arisen about the pool 

accessibility requirements adopted in 

the 2010 Standards. First, some 

commenters suggested that the 

requirement that the pool lift be fixed 

was not part of the title III regulation 

published by the Department in 

September 2010, but was, instead, an 

interpretation the Department later 

developed outside of the rulemaking 

process. However, the Department has 

had a longstanding position that the 

ADA Standards apply to fixed and builtin elements. See, e.g., Department of 

Justice, Americans With Disabilities 

Act, ADA Title III Technical Assistance 

Manual Covering Public 

Accommodations and Commercial 

Facilities (Supp. 1994), III–5.3000, 

available at http://www.ada.gov/ 

taman3up.html, (providing that ‘‘[o]nly 

equipment that is fixed or built in to the 

facility, is covered by the accessibility 

standards’’). The Department codified 

that position in both the revised title II 

and title III regulations, see 28 CFR 

35.151(d) and 36.406(b). Throughout the 

six-year process of revising the ADA 

regulations, the Department stated that 

the ADA Standards did not apply to 

freestanding (e.g., non-fixed, moveable, 

or portable) equipment. For example, 

the 2004 ANPRM included a section 

entitled, ‘‘Application of ADA 

Standards and ADA to Free-Standing 

Equipment,’’ in which the Department 

stated that the ADA Standards do not 

apply to portable equipment. See 69 FR 

58768, 58775 (Sept. 30, 2004) (providing 

that ‘‘the revised ADA Standards will 

apply directly only to fixed 

equipment—as described above, 

equipment that becomes built into the 

structure of a facility—and not to freestanding equipment’’). The 2008 title III 

NPRM and the 2010 Final Rules 

reiterated this point. See 73 FR 34508, 

34543 (June 17, 2008) (‘‘The Department 

is proposing a new § 36.406(b) that 

would clarify that the requirements 

established by this section, including 

those contained in the proposed 

standards (and the 2004 [ADA 

Accessibility Guidelines]) prescribe the 

requirements necessary to ensure that 

fixed or built-in elements in new or 

altered facilities are accessible to people 

with disabilities.’’); 75 FR 56236, 56303 

(Sept. 15, 2010) (‘‘The final [title III] rule 

contains a new § 36.406(b) that clarifies 

that the requirements established by this 

section, including those contained in 

the 2004 [ADA Accessibility 

Guidelines], prescribe the requirements 

necessary to ensure that fixed or builtin elements in new or altered facilities 

are accessible to individuals with 

disabilities.’’).4

Section 36.304(d) of the title III 

regulation specifies that measures taken 

to comply with the readily achievable 

barrier removal requirement must 

comply with the applicable 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30177 

5Since the title III regulation first took effect, the 

Department has provided extensive technical 

assistance regarding the readily achievable barrier 

requirement for existing facilities. The technical 

assistance material provided by the Department 

contains examples of the application of this 

requirement. Pool owners and operators can access 

information on barrier removal on the Department’s 

ADA Web site, www.ada.gov. Publications that 

address barrier removal include, but are not limited 

to, the 1993 ADA Title III Technical Assistance 

Manual (Section III–4.4200), available at http:// 

www.ada.gov/taman3.html, the 1996 ADA Guide 

for Small Businesses (revised and reissued in 1999), 

which was published in conjunction with the Small 

Business Administration (‘‘SBA’’), available at 

http://www.ada.gov/smbusgd.pdf, and a 2005 

online course entitled ‘‘Reaching Out to Customers 

With Disabilities,’’ which is available at http:// 

www.ada.gov/reachingout/intro1.htm. 

6Section 35.150 requires that title II entities 

operate each service, program or activity, so that 

when viewed in its entirety, the service, program 

or activity is readily accessible to and usable by 

individuals with disabilities. 

requirements for alterations as set forth 

in § 36.402 and §§ 36.404 through 

36.406, which reference the 2010 

Standards. Given that the ADA 

Standards apply only to fixed or builtin elements, the title III regulation 

requires the use of fixed elements when 

removing barriers in existing facilities 

unless it is not readily achievable to do 

so. Thus, it follows that public 

accommodations engaged in barrier 

removal must provide a fixed or builtin lift in existing pools as long as it is 

readily achievable. 

A second group of commenters who 

owned or operated public 

accommodations and who supported 

the extension mistakenly believed that if 

they could not comply with the pool 

access requirements of the 2010 

Standards (because compliant pool lifts 

were unavailable or they could not 

afford to provide a lift, for example), 

they would be forced to close their 

pools. This is also a misunderstanding 

of the ADA regulations. Compliance 

with the 2010 Standards is only 

required to the extent that it is ‘‘readily 

achievable’’—a term that means ‘‘easily 

accomplishable and able to be carried 

out without much difficulty or 

expense.’’ See 28 CFR 36.104. Thus, title 

III of the ADA does not require that a 

public accommodation close its pool 

facility if, for example, compliant pool 

lifts are not available or if the facility 

cannot afford such a lift. In such 

circumstances, a public accommodation 

can achieve compliance with its ADA 

obligations without installing a fully 

compliant pool lift, because that 

measure would not be ‘‘easily 

accomplishable’’ or ‘‘able to be carried 

out without much difficulty or 

expense.’’ Id. The revised 2010 title III 

regulation, like the 1991 regulation that 

preceded it, implements the ‘‘readily 

achievable’’ definition established by 

Congress in the statute and maintains 

unchanged the definition of ‘‘readily 

achievable’’ incorporated in the 1991 

regulation. 

To determine whether providing an 

accessible means of entry to an existing 

pool is readily achievable, businesses 

must use the same general barrier 

removal analysis that has always 

applied to other covered elements in 

existing facilities. Both the ADA statute, 

which Congress passed in 1990, and the 

Department’s ADA title III regulation, 

which was originally published in 1991, 

set out a case-by-case analysis to be 

used in determining whether removing 

certain barriers is readily achievable. 

Specifically, the regulations provide at 

§ 36.104 that in determining whether an 

action is readily achievable, the factors 

to be considered include: 

(1) The nature and cost of the action; 

(2) The overall financial resources of 

the site or sites involved, the number of 

persons employed at the site, the effect 

on expenses and resources, legitimate 

safety requirements necessary for safe 

operation, including crime prevention 

measures, and any other impact of the 

action on the operation of the site; 

(3) The geographic separateness, and 

the administrative or fiscal relationship 

of the site or sites in question to any 

parent corporation or entity; 

(4) If applicable, the overall financial 

resources of any parent corporation or 

entity, the overall size of the parent 

corporation or entity with respect to the 

number of its employees, and the 

number, type, and location of its 

facilities; and 

(5) If applicable, the type of operation 

or operations of any parent corporation 

or entity, including the composition, 

structure, and functions of the 

workforce of the parent corporation or 

entity.5

Under this standard, which has 

applied to places of public 

accommodation since 1991, hotels and 

other public accommodations will not 

be required to close their existing pools 

if compliance with the applicable ADA 

Accessibility Standards is not easily 

accomplishable or able to be carried out 

without much difficulty or expense. 

Similarly, the inability of a public 

accommodation to install a lift due to 

insufficient space at the side of the pool 

deck would be addressed by using the 

barrier removal analysis, which does not 

require entities to undertake changes 

that cannot be accomplished without 

much difficulty or expense. 

Several commenters, including a pool 

lift manufacturer, supported an 

extension on the basis that there is 

currently a significant backlog in 

availability of compliant lifts. They 

were concerned that if the pool access 

requirements took effect, pool owners 

and operators who could not acquire a 

lift because of a manufacturing backlog 

would be in violation of the ADA. 

However, the lack of availability of a 

compliant lift because of limitations in 

manufacturing capacity would 

demonstrate that it is not readily 

achievable to comply with the 

requirements, until such time as a lift 

becomes available. 

The Department received a small 

number of comments from title II 

entities, the majority of which were 

from small local governments. Most of 

these commenters favored the proposed 

extension. A number of them believed a 

moveable lift was appropriate to comply 

with the revised ADA requirements and 

had not accounted for the costs 

associated with a fixed pool lift in their 

yearly budgets. As a result, these 

entities supported the extension in 

order to secure additional funding. 

However, the title II program 

accessibility requirements allow the use 

of equipment as an alternative to 

making structural changes to an existing 

facility; thus these entities would not 

necessarily have to provide a fixed lift 

in order to satisfy their program 

accessibility obligation.6

Some title II entities stated that they 

would have to close down community 

pools rather than incur the expense of 

complying with the regulation. To the 

contrary the title II program accessibility 

regulation does not require title II 

entities to make changes to their 

programs, services, or activities if the 

changes would constitute a fundamental 

alteration or would impose an undue 

financial and administrative burden. 

Title II does not require a facility to 

close when compliance with the 

program accessibility requirements 

poses an undue financial and 

administrative burden. This is the case 

whether the title II facility in question 

is a public office, a school, or a 

swimming pool. 

Some of the comments the 

Department received reflected 

misconceptions about the abilities of 

persons with disabilities to participate 

in the same activities that are afforded 

persons without disabilities. The ADA 

was intended, in part, to address these 

misconceptions. 

Without the pool access requirement 

of the regulations, it is clear that many 

individuals with disabilities would not 

be able to avail themselves of pool 

amenities offered by covered entities. As 

noted by many commenters opposed to 

the proposed extension, individuals 

with disabilities have long awaited the 

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30178 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

7As discussed earlier, the Department issued a 

Final Rule extending the date for compliance with 

sections 242 and 1009 of the 2010 Standards as they 

relate to existing pools (pools built as of March 15, 

2012), until May 21, 2012. See 77 FR at 16163. 

However, the regulatory text was not revised. 

ADA Accessibility Standards that 

address access to recreational facilities, 

such as pools. These comments 

illustrate the significant impact that a 

further extension would have on many 

individuals with disabilities and their 

families during yet another summer 

pool season. On the other hand, as 

stated above and in the Department’s 

NPRM, it is clear to the Department that 

a significant number of pool owners and 

operators may continue to have 

misunderstandings and concerns about 

their obligations with regard to 

providing access to existing pools. 

These misunderstandings have affected 

pool operators and owners in at least 

three ways that are relevant to the 

Department’s proposal. First, it appears 

that some places of public 

accommodation initially proceeded on 

the misunderstanding that a portable 

pool lift would in all circumstances 

satisfy the pool accessibility 

requirements of the 2010 Standards. 

Those pool operators and owners will 

need time to undertake a fact-specific 

analysis about whether the installation 

of a fully compliant pool lift is ‘‘readily 

achievable,’’ and to implement their 

compliance plan. Second, the comments 

suggested that at least some pool owners 

and operators who generally speaking 

would find installation of a compliant 

pool lift to be ‘‘readily achievable’’ 

currently are having difficulty locating 

compliant pool lifts that are available 

for purchase. The Department believes 

that this circumstance provides an 

additional reason to postpone the 

compliance date, thereby allowing a 

greater number of covered entities to 

purchase and install compliant pool 

lifts. Third, comments received by the 

Department also raise concerns that, 

absent an extension, some covered 

entities might respond to the 

compliance date by taking steps that the 

law does not require and that would 

actually undermine the goal of ensuring 

that individuals with disabilities obtain 

the benefits that the regulations sought 

to ensure—safe and compliant pool 

access to existing pools when it is 

readily achievable to provide it. For 

example, if pool owners and operators 

close pools because they incorrectly 

believe that the 2010 Standards require 

that a fully compliant pool lift must be 

installed in all cases, those closures will 

reduce access to pools for everyone, 

including individuals with disabilities. 

Similarly, if pool owners and operators 

are unable to obtain compliant lifts 

because of the lack of availability, they 

may unwittingly purchase noncompliant lifts that will not provide safe 

and independent pool access to persons 

with disabilities. 

After carefully considering all of these 

factors, including the unique burdens 

that an additional postponement would 

impose on individuals with disabilities, 

the Department has concluded that a 

further extension of the compliance date 

is warranted. Although the Department 

originally proposed a four-month 

extension until September 17, 2012, 

based on the breadth of the concerns 

and the misunderstandings about the 

requirements expressed in the 

comments the Department received, the 

Department has decided to extend the 

compliance date for sections 242 and 

1009 of the 2010 Standards for existing 

pools subject to title III barrier removal 

and to title II program access until 

January 31, 2013. That date is one year 

from the date that the Department 

issued its initial guidance clarifying that 

the ADA regulations required fixed pool 

lifts, and is still well in advance of next 

year’s swim season. The Department 

emphasizes that this extension is 

consistent with Executive Order 13563, 

which emphasizes the importance of 

promoting predictability and reducing 

uncertainty, and which also stresses the 

value of public participation and an 

‘‘open exchange of information and 

perspectives.’’ 

This longer extension will provide 

additional time for the Department to 

continue to educate covered entities 

about their obligations under the 2010 

Standards with regard to providing 

access into their existing pools, to 

respond to relevant concerns, and to 

address misunderstandings that could 

lead covered entities to take 

unnecessary and counterproductive 

steps, thereby allowing all stakeholders 

to have the same understanding of what 

is required by the ADA and promoting 

broader compliance with the rule. The 

Department also believes that the 

additional time will allow covered 

entities to complete the fact-specific 

evaluation required by the ‘‘readily 

achievable’’ standard, and to implement 

their compliance plans, including by 

taking the steps necessary to comply 

with the pool accessibility requirements 

of the 2010 Standards. 

Section-by-Section Analysis 

Section 35.150(b)(1) 

Currently, § 35.150(b)(1) specifies that 

if a public entity chooses to make 

structural alterations to existing 

buildings in order to meet its program 

accessibility obligations, it shall comply 

with the accessibility requirements set 

forth in § 35.151. The current title II 

regulation specifies, at § 35.151(c)(3), 

that all facilities that are newly 

constructed or altered on or after March 

15, 2012 must comply with the 2010 

Standards.7 The final rule postpones the 

compliance date, as applied to the 

requirements for accessible means of 

entry for existing pools, by adding a 

new paragraph (b)(4) to § 35.150. The 

new paragraph reads: ‘‘The 

requirements set forth in sections 242 

and 1009 of the 2010 Standards shall 

not apply until January 31, 2013, if a 

public entity chooses to make structural 

changes to existing swimming pools, 

wading pools, or spas built before 

March 15, 2012, for the sole purpose of 

complying with the program 

accessibility requirements set forth in 

this section. 

Section 36.304 

Section 36.304(d) currently specifies 

that on or after March 15, 2012, public 

accommodations must generally use the 

2010 Standards as the benchmark for 

their ongoing obligation to remove 

architectural barriers in existing 

facilities to the extent such compliance 

is readily achievable. The final rule 

extends the compliance date for 

applying the barrier removal 

requirements for accessible means of 

entry for pools, by adding paragraph 

(g)(5), which states the following: ‘‘The 

application of this requirement to 

facilities built before March 15, 2012, 

for accessible means of entry for 

swimming pools, wading pools, and 

spas as set forth in sections 242 and 

1009 of the 2010 Standards shall not 

apply until January 31, 2013.’’ 

The final rule also modifies the 

Appendix to § 36.304(d) to reflect the 

extension of the compliance date. 

Regulatory Certifications 

Administrative Procedure Act 

The Department finds good cause to 

make this regulation effective without a 

30-day delay in the effective date, 

pursuant to 5 U.S.C. 553(d), as it 

relieves a restriction by extending the 

compliance dates for the title II program 

accessibility requirements pursuant to 

28 CFR 35.150 and the title III barrier 

removal obligations pursuant to 28 CFR 

36.304 as they relate to accessible means 

of entry into existing swimming pools, 

wading pools, and spas, from May 21, 

2012, until January 31, 2013. 

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Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 30179 

Executive Order 13563 and Executive 

Order 12866—Regulatory Planning and 

Review 

This regulation has been drafted and 

reviewed in accordance with Executive 

Order 13563, ‘‘Improving Regulation 

and Regulatory Review,’’ and Executive 

Order 12866, ‘‘Regulatory Planning and 

Review’’ section 1(b), The Principles of 

Regulation. The Department of Justice 

has determined that this rule is a 

‘‘significant regulatory action’’ under 

Executive Order 12866, section 3(f), and 

accordingly this rule has been reviewed 

by the Office of Management and 

Budget (OMB). 

Executive Order 12988—Civil Justice 

Reform 

This rule meets the applicable 

standards set forth in sections 3(a) and 

3(b)(2) of Executive Order 12988. 

Executive Order 13132—Federalism 

This rule will not have substantial 

direct effects on the States, on the 

relationship between the Federal 

Government and the States, or on 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

it is determined that this rule does not 

have sufficient federalism implications 

to warrant the preparation of a 

Federalism Assessment. 

Regulatory Flexibility Act 

The Attorney General, in accordance 

with the Regulatory Flexibility Act, 

5 U.S.C. 605(b), has reviewed this 

regulation, and by approving it certifies 

that it will not have a significant 

economic impact on a substantial 

number of small entities. This rule 

merely extends the compliance dates for 

the title II program accessibility 

requirements pursuant to 28 CFR 35.150 

and the title III barrier removal 

obligations pursuant to 28 CFR 36.304 

as they relate to accessible means of 

entry into existing swimming pools, 

wading pools, and spas. The extension 

provides regulated entities additional 

time to evaluate and comply with their 

program accessibility and readily 

achievable barrier removal obligations. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100,000,000 or 

more, a major increase in costs or prices, 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Unfunded Mandates Reform Act of 1995 

Section 4(2) of the Unfunded 

Mandates Reform Act of 1995, 2 U.S.C. 

1503(2), excludes from coverage under 

that Act any proposed or final Federal 

regulation that ‘‘establishes or enforces 

any statutory rights that prohibit 

discrimination on the basis of race, 

color, religion, sex, national origin, age, 

handicap, or disability.’’ Accordingly, 

this rulemaking is not subject to the 

provisions of the Unfunded Mandates 

Reform Act. 

Paperwork Reduction Act of 1995 

This rule does not contain any 

information collection requirements that 

require approval by OMB under the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq. 

List of Subjects for 28 CFR Parts 35 and 

36 

Administrative practice and 

procedure, Buildings and facilities, Civil 

rights, Communications, Individuals 

with disabilities, Reporting and 

recordkeeping requirements, State and 

local governments, Business and 

industry. 

By the authority vested in me as 

Attorney General by law, including 28 

U.S.C. 509 and 510, 5 U.S.C. 301, and 

sections 204 and 306 of the Americans 

with Disabilities Act of 1990, Public 

Law 101B336 (42 U.S.C. 12134 and 

12186), chapter I of title 28 of the Code 

of Federal Regulations is amended as 

follows: 

PART 35—NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN STATE 

AND LOCAL GOVERNMENT SERVICES 

■ 1. The authority citation for part 35 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 12134. 

■ 2. In § 35.150, paragraph (b)(4) is 

added to read as follows: 

§ 35.150 Existing facilities. 

* * * * * 

(b) * * * 

(4) Swimming pools, wading pools, 

and spas. The requirements set forth in 

sections 242 and 1009 of the 2010 

Standards shall not apply until January 

31, 2013, if a public entity chooses to 

make structural changes to existing 

swimming pools, wading pools, or spas 

built before March 15, 2012, for the sole 

purpose of complying with the program 

accessibility requirements set forth in 

this section. 

* * * * * 

PART 36––NONDISCRIMINATION ON 

THE BASIS OF DISABILITY IN PUBLIC 

ACCOMMODATIONS AND 

COMMERCIAL FACILITIES 

■ 3. The authority citation for part 36 

continues to read as follows: 

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 

510; 42 U.S.C. 12186(b). 

■ 4. Amend § 36.304 as follows: 

■ a. Revise the Appendix to § 36.304(d), 

and 

■ b. Add paragraph (g)(5), to read as 

follows: 

§ 36.304 Removal of barriers. 

* * * * * 

(d) * * * 

Appendix to § 36.304(d) 

COMPLIANCE DATES AND APPLICABLE STANDARDS FOR BARRIER REMOVAL AND SAFE HARBOR

Date Requirement Applicable standards 

Before March 15, 2012 ................... Elements that do not comply with the requirements for those elements in the 1991 Standards must be modified to the extent readily 

achievable.

Note: Noncomplying newly constructed and altered elements may 

also be subject to the requirements of § 36.406(a)(5). 

1991 Standards or 2010 Standards. 

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30180 Federal Register / Vol. 77, No. 98 / Monday, May 21, 2012 / Rules and Regulations 

COMPLIANCE DATES AND APPLICABLE STANDARDS FOR BARRIER REMOVAL AND SAFE HARBOR—Continued 

Date Requirement Applicable standards 

On or after March 15, 2012 ............ Elements that do not comply with the requirements for those elements in the 1991 Standards or that do not comply with the supplemental requirements (i.e., elements for which there are neither 

technical nor scoping specifications in the 1991 Standards), must 

be modified to the extent readily achievable. There is an exception 

for existing pools, wading pools, and spas built before March 15, 

2012 [See § 36.304(g)(5)].

Note: Noncomplying newly constructed and altered elements may 

also be subject to the requirements of § 36.406(a)(5). 

2010 Standards. 

On or after January 31, 2013 ......... For existing pools, wading pools, and spas built before March 15, 

2012, elements that do not comply with the supplemental requirements for entry to pools, wading pools, and spas must be modified 

to the extent readily achievable [See § 36.304(g)(5)].

Sections 242 and 1009 of the 

2010 Standards. 

Elements not altered after March 

15, 2012.

Elements that comply with the requirements for those elements in the 

1991 Standards do not need to be modified.

Safe Harbor. 

* * * * * 

(g) * * * 

(5) With respect to facilities built before 

March 15, 2012, the requirements in this 

section for accessible means of entry for 

swimming pools, wading pools, and spas, as 

set forth in sections 242 and 1009 of the 2010 

Standards, shall not apply until January 31, 

2013. 

* * * * * 

Dated: May 17, 2012. 

James M. Cole. 

Acting Attorney General. 

[FR Doc. 2012–12365 Filed 5–17–12; 4:15 pm] 

BILLING CODE 4410–13–P 

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