[Federal Register Volume 77, Number 54 (Tuesday, March 20, 2012)]
[Rules and Regulations]
[Pages 16163-16165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6748]


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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 122; AG Order No. 3326-2012]
RIN 1190-AA68


Nondiscrimination on the Basis of Disability by Public 
Accommodations and in Commercial Facilities; Swimming Pools

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Final rule.

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SUMMARY: By this rule, the Department of Justice is extending the date 
for compliance with certain requirements in the 2010 Americans with 
Disabilities Act (ADA) Standards for Accessible Design (2010 Standards) 
that relate to provision of accessible entry and exit for swimming 
pools, wading pools, and spas. This final rule, based on a finding of 
good cause, changes the date for compliance from March 15, 2012, to May 
21, 2012 in order to allow additional time to address misunderstandings 
regarding compliance with these ADA requirements. Some pool owners and 
operators believed that taking certain steps would always satisfy their 
obligations under the ADA when in fact those steps would not 
necessarily result in compliance with the ADA regulations.

DATES: 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.

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).
    This rule is also available in an accessible format on the ADA Home 
Page at http://www.ada.gov. You may obtain copies of this rule in large 
print or on computer disk by calling the ADA Information Line listed 
above.

SUPPLEMENTARY INFORMATION: 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 56163. The revised ADA rules were the result of a six-
year process to update the Department's regulations. As part of this 
process, the Department sought extensive 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 over 
4,435 written public comments. On September 15, 2010, the Department 
published a final rule revising the regulations implementing titles II 
and III of the ADA. As part of this revision, the Department adopted 
the 2010 ADA Standards for Accessible

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Design (``2010 Standards''), which are based in large part on the 2004 
ADA Accessibility Guidelines adopted by the United States Access Board 
in 2004. See 69 FR 44083 (July 23, 2004). With limited exception, the 
Department's revised regulations went into effect on March 15, 2011.
    With a compliance deadline of March 15, 2012, the 2010 Standards 
set minimum scoping and technical requirements for accessible entry and 
exit for new construction and alteration of swimming pools, wading 
pools, and spas (collectively, ``pools''). In addition, the title III 
regulation provides that as of March 15, 2012, public accommodations' 
barrier removal efforts must comply with the 2010 Standards to the 
extent readily achievable, including with respect to barriers to 
accessing pools. 28 CFR 36.304 (d)(2)(iii). The title II regulation 
provides that the 2010 Standards apply where public entities choose to 
meet their title II ADA program access obligations by making structural 
changes to their pools. 28 CFR 35.150(b)(1), (b)(2)(ii).

Regulatory Certifications

Administrative Procedure Act

    The Department of Justice finds that good cause exists for adopting 
this rule as a final rule with an immediate effective date because 
proceeding via ordinary Administrative Procedure Act process would be 
impracticable and contrary to the public interest. See 5 U.S.C. 553(b). 
The Department promulgated a Final Rule on September 15, 2010 (the 2010 
Final Rule), adopting the 2010 ADA Standards for Accessible Design and 
implementing ADA title II requirements for program accessibility and 
the title III requirements for readily achievable barrier removal as 
applied to existing swimming programs and swimming pools. As the March 
15, 2012, date for compliance approached, the Department received a 
large number of inquiries regarding the obligations of owners and 
operators of existing pools under the 2010 Final Rule. On January 31, 
2012, the Department of Justice Civil Rights Division published a 
technical assistance document entitled ``ADA 2010 Revised Requirements: 
Accessible Pools--Means of Entry and Exit'' (the ``TA Document''). The 
Civil Rights Division issued the TA document to educate public entities 
and public accommodations about their obligations under the ADA 
regulations as revised by the 2010 Final Rule.
    Both the inquiries received by the Department prior to the TA 
Document's publication and the pool owners and operators' response to 
the TA Document reveal that there were misunderstandings among a 
substantial number of pool owners and operators concerning the 
obligations imposed by the ADA as implemented in the 2010 Final Rule as 
to their obligations with respect to existing pools and their options 
with respect to the provision of pool lifts. 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. Recognizing that pool owners and 
operators face challenges in correcting their misunderstandings and 
determining appropriate compliance when faced with what is now an 
immediate compliance date, the Department determined that it would be 
impracticable and contrary to the public interest to retain the 
existing compliance date, and that a brief 60-day extension of that 
date is necessary to provide an opportunity for pool owners and 
operators to assess their obligations under the Final Rule and 
determine how best to comply. Further, the Department is 
contemporaneously issuing a Notice of Proposed Rulemaking seeking 
public comment on whether an even longer period of time to allow pool 
owners and operators to meet their compliance obligations would be 
appropriate. Accordingly, this 60-day extension of the compliance date 
is intended to avoid economic effects and disruption of the existing 
status quo while enabling public comment and meaningful review of those 
comments on the question of whether a longer extension of the 
compliance date is warranted. Thus, the government concludes that the 
requisite good cause for issuance of this final rule exists, and the 
requirements for notice and comment are not applicable to this brief 
extension of the compliance date set forth in the 2010 Final Rule. 5 
U.S.C. 553(b).
    Additionally, this rule is effective immediately on date of display 
for public inspection in the Federal Register. Section 553(d) of the 
Administrative Procedures Act requires 30-days notice before the 
effective date of a final rule. However, section 553(d)(1) allows an 
exception to the 30-day notice where a rule relieves a restriction. 
Because this final rule relieves a restriction, in the form of an 
existing date for compliance with a regulatory requirement, the 
Department invokes section 553(d)(1) to allow an immediate effective 
date.

Executive Order 12866--Regulatory Planning and Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review'' section 1(b), 
Principles of Regulation. The Department of Justice has determined that 
this rule is a ``significant regulatory action'' under Executive Order 
12866, section 3(f), Regulatory Planning and Review, 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. Sec.  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 for 60 days the compliance date of the specified provisions of 
the title II and title III ADA rules to avoid economic effects and 
disruption of the existing status quo while enabling public comment and 
meaningful review of those comments on the question of whether a longer 
extension of the compliance date is warranted.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. 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 foreign-

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based 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.

    Dated: March 15, 2012.
Eric H. Holder, Jr.,
Attorney General.
[FR Doc. 2012-6748 Filed 3-15-12; 4:45 pm]
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