[Federal Register Volume 77, Number 54 (Tuesday, March 20, 2012)]
[Proposed Rules]
[Pages 16196-16198]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6747]


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DEPARTMENT OF JUSTICE

28 CFR Parts 35 and 36

[CRT Docket No. 123; AG Order No. 3327-2012]
RIN 1190-AA69


Delaying the Compliance Date for Certain Requirements of the 
Regulations Implementing Titles II and III of the Americans With 
Disabilities Act

AGENCY: Civil Rights Division, Department of Justice.

ACTION: Notice of proposed rulemaking.

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SUMMARY: By this rule, the Department of Justice is proposing to extend 
the date for compliance with certain requirements in the 2010 Americans 
with Disabilities Act (ADA) Standards for Accessible Design that relate 
to provision of accessible entry and exit for existing swimming pools 
and spas. Concurrently with the publication of this Notice of Proposed 
Rulemaking (NPRM), the Department is publishing a final rule that 
extends the compliance date with respect to existing swimming pools, 
wading pools, and spas to May 21, 2012 in order to allow additional 
time to address misunderstandings among pool owners and operators 
regarding these ADA requirements. By this rule, the Department seeks 
public comment on its proposal to extend the compliance date for a 
longer period of six months, until September 17, 2012 in the interest 
of promoting clear and consistent application of the ADA's requirements 
to existing facilities.

[[Page 16197]]


DATES: Written comments must be postmarked and electronic comments must 
be submitted on or before April 4, 2012. Comments received by mail will 
be considered timely if they are postmarked on or before that date. 
Commenters should be aware that the electronic Federal Docket 
Management System will not accept comments after Midnight Eastern Time 
on the last day of the comment period.

ADDRESSES: You may submit comments, identified by RIN (or Docket No. 
123), by any one of the following methods:
    <bullet> Federal eRulemaking portal: www.regulations.gov. Follow 
the Web site instructions for submitting comments. The Regulations.gov 
Docket ID is.
    <bullet> Mail: Please submit all written comments to Disability 
Rights Section, Civil Rights Division, U.S. Department of Justice, 950 
Pennsylvania Avenue NW., Washington, DC 20530.
    <bullet> Overnight, courier or hand delivery: Disability Rights 
Section, Civil Rights Division, U.S. Department of Justice, 1425 New 
York Avenue NW., Suite 4039, Washington, DC 20005.
    Please submit your comments by only one method. Because of the 
short timeframe for this rulemaking, the Department will not review 
comments received by means other than those listed above, or that are 
received after the comment period has closed. While the Department is 
soliciting comments on the proposed suspension of the applicability of 
the requirements in the 2010 Standards to swimming pools and spas, we 
do not with this NPRM seek comments related to the merits of the 
requirements themselves, which have already been evaluated fully 
through an earlier, extensive notice and comment process. We will deem 
any such comments on this NPRM out of scope and will not consider them.

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:
    Posting of Public Comments. Please note that all comments received 
are considered part of the public record and made available for public 
inspection online at http://www.regulations.gov. Such information 
includes personal identifying information (such as your name and 
address) voluntarily submitted by the commenter.
    You are not required to submit personal identifying information in 
order to comment on this rule. Nevertheless, if you want to submit 
personal identifying information (such as your name and address) as 
part of your comment, but do not want it to be posted online, you must 
include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first 
paragraph of your comment. You also must locate all the personal 
identifying information you do not want posted online in the first 
paragraph of your comment and identify what information you want 
redacted.
    If you want to submit confidential business information as part of 
your comment but do not want it to be posted online, you must include 
the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph 
of your comment. You also must prominently identify confidential 
business information to be redacted within the comment. If a comment 
has so much confidential business information that it cannot be 
effectively redacted, all or part of that comment may not be posted on 
http://www.regulations.gov.
    Personal identifying information and confidential business 
information identified and located as set forth above will be placed in 
the agency's public docket file, but not posted online. If you wish to 
inspect the agency's public docket file in person by appointment, 
please see the paragraph above entitled FOR FURTHER INFORMATION 
CONTACT.
    The reason the Department is requesting electronic comments before 
Midnight Eastern Time at the end of the day the comment period closes 
is that the inter-agency Regulations.gov/Federal Docket Management 
System (FDMS), which receives electronic comments, terminates the 
public's ability to submit comments at that time. Commenters in time 
zones other than Eastern may want to take this fact into account so 
that their electronic comments can be received. The constraints imposed 
by the Regulations.gov/FDMS system do not apply to U.S. postal comments 
which, as stated above, will be considered as timely filed if they are 
postmarked before Midnight on the day the comment period closes.

Discussion

    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 more than 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 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), (2)(ii).
    To help educate pool owners and operators concerning the 
requirements imposed by the regulations issued by the Department in 
September 2010, 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. 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

[[Page 16198]]

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. Thus the Department is contemporaneously 
issuing a Final Rule providing a brief 60-day extension of the March 
15, 2012, compliance date.
    The Department now requests public comment on a proposal to further 
extend 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 swimming pools, wading pools, and spas 
in compliance with the 2010 Standards. The proposed extension would run 
for a period of 180 days from the compliance date specified in the 
September 2010 Final Rule, namely March 15, 2012. As discussed above, 
the extension would provide pool owners and operators additional time 
to evaluate and comply with their program accessibility and readily 
achievable barrier removal obligations in compliance with sections 242 
and 1009 of the 2010 Standards.

Regulatory Certifications

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. 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 requests comment 
on a proposal to further extend 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 swimming pools, wading pools, 
and spas. The extension would provide 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 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-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 proposed 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. 2012-6747 Filed 3-15-12; 4:45 pm]
BILLING CODE 4410-13-P