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DEPARTMENT OF JUSTICE

U.S. Customs and Border Protection

CFR Citation: 28 CFR Part 36

Docket ID: [CRT Docket No. 106; AG Order No. 2968-2008]

RIN ID: RIN 1190-AA44

NOTICE: Part III

DOCUMENT ACTION: Notice of proposed rulemaking.

SUBJECT CATEGORY: Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities

DATES: All comments must be received by August 18, 2008.

DOCUMENT SUMMARY: The Department of Justice (Department) is issuing this notice of proposed rulemaking (NPRM) in order to: Adopt enforceable accessibility standards under the Americans with Disabilities Act of 1990 (ADA) that are ``consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board'' (Access Board); and perform periodic reviews of any rule judged to have a significant economic impact on a substantial number of small entities, and a regulatory assessment of the costs and benefits of any significant regulatory action as required by the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA).

In this NPRM, the Department proposes to adopt Parts I and III of the Americans With Disabilities Act and Architectural Barriers Act Accessibility Guidelines (2004 ADAAG), which were published by the Architectural and Transportation Barriers and Compliance Board (Access Board) on July 23, 2004. Prior to its adoption by the Department, the 2004 ADAAG is effective only as guidance to the Department; it has no legal effect on the public until the Department issues a final rule adopting
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the revised ADA Standards (proposed standards).

Concurrently with the publication of this NPRM, the Department is publishing an NPRM to amend its title II regulation, which covers state and local government entities, in order to adopt the 2004 ADAAG as its proposed standards for title II entities, to make amendments to the title II regulation for consistency with title III, and to make amendments that reflect the collective experience of 16 years of enforcement of the ADA.

SUMMARY: Justice Department,

SUPPLEMENTAL INFORMATION

Electronic Submission and Posting of Public Comments

You may submit electronic comments to http://www.regulations.gov. When submitting comments electronically, you must include CRT Docket No. 106 in the subject box, and you must include your full name and address.

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, address, etc.) voluntarily submitted by the commenter.

If you want to submit personal identifying information (such as your name, address, etc.) 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 must also locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify information you want redacted.

If you want to submit confidential business information as part of your comment but do not want it posted online, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You must also 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 identified and located as set forth above will be placed in the agency's public docket file, but not posted online. Confidential business information identified and located as set forth above will not be placed in the public docket file. If you wish to inspect the agency's public docket file in person by appointment, please see the ``FOR FURTHER INFORMATION CONTACT'' paragraph.

Overview

Throughout this NPRM, the current, legally enforceable ADA Standards will be referred to as the ``1991 Standards,'' 28 CFR part 36, App. A, 56 FR 35544 (July 26, 1991), modified in part at 59 FR 2674 (Jan. 18, 1994). The Access Board's 2004 revised guidelines will be referred to as the ``2004 ADAAG,'' 69 FR 44084 (July 23, 2004), as amended (editorial changes only) at 70 FR 45283 (Aug. 5, 2005). The revisions now proposed in the NPRM, based on the 2004 ADAAG, are referred to in the preamble as the ``proposed standards.''

In performing the required, periodic review of its existing regulation, the Department has reviewed the title III regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. The Department's initial, formal benefit cost analysis can be found at Appendix B. See E.O. 12866, 58 FR 51735 (Sept. 30, 1993), amended by E.O. 13258, 67 FR 9385 (Feb. 26, 2002), and E.O. 13422, 72 FR 2703 (Jan. 18, 2007); 5 U.S.C. 601, 603, and 610(a); and OMB Circular A4, http://www.whitehouse.gov/omb/circulars/ a004/a4.pdf. The NPRM was submitted to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, for review and approval prior to publication in the Federal Register. It has also been reviewed by the Small Business Administration's Office of Advocacy pursuant to Executive Order 13272, 67 FR 53461 (Aug. 13, 2002). Purpose

On July 26, 1990, President George H.W. Bush signed into law the Americans With Disabilities Act, 42 U.S.C. 12101 et seq., a comprehensive civil rights law prohibiting discrimination on the basis of disability. At the beginning of his administration, President George W. Bush underscored the nation's commitment to ensuring the rights of over fifty million individuals with disabilities nationwide by announcing the New Freedom Initiative (available at http:// www.whitehouse.gov/infocus/newfreedom). The Access Board's publication of the 2004 ADAAG is the culmination of a longterm effort to facilitate ADA compliance and enforcement by eliminating, to the extent possible, inconsistencies among federal accessibility requirements and between federal accessibility requirements and state and local building codes. In support of this effort, the Department is announcing its intention to adopt standards consistent with Parts I and III of the 2004 ADAAG as the ADA Standards for Accessible Design. To facilitate this process, the Department is seeking public comment on the issues discussed in this notice.

The ADA and Department of Justice Regulations

The ADA broadly protects the rights of individuals with disabilities in employment, access to state and local government services, places of public accommodation, transportation, and other important areas of American life and, in addition, requires newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. 42 U.S.C. 12101 et seq. Under the ADA, the Department is responsible for issuing regulations to implement title II and title III of the Act, except to the extent that transportation providers subject to title II or title III are regulated by the Department of Transportation. Id. at 12134.

The Department also is proposing amendments to its title II regulation, which prohibits discrimination on the basis of disability in state and local government services, concurrently with the publication of this NPRM, in this issue of the Federal Register. [[Page 34510]]

Title III prohibits discrimination on the basis of disability in the activities of places of public accommodation (businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreational facilities, and doctors' offices) and requires newly constructed or altered places of public accommodationas well as commercial facilities (privately owned, nonresidential facilities like factories, warehouses, or office buildings)to comply with the ADA Standards. 42 U.S.C. 1218189.

On July 26, 1991, the Department issued its final rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III). Appendix A of the title III regulation, at 28 CFR part 36, contains the 1991 Standards, which were based upon the version of ADAAG published by the Access Board on the same date. Under the Department's regulation implementing title III, places of public accommodation and commercial facilities are currently required to comply with the 1991 Standards with respect to newly constructed or altered facilities.

Relationship to Other Laws

The Department of Justice regulation implementing title III, 28 CFR 36.103, provides:
(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal agencies pursuant to that title.
(b) Section 504. This part does not affect the obligations of a recipient of federal financial assistance to comply with the requirements of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794, and regulations issued by federal agencies implementing section 504.
(c) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other federal, state, or local laws (including state common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

Nothing in this proposed rule will alter this relationship. The Department recognizes that public accommodations subject to title III of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment; section 504, which prohibits discrimination on the basis of disability in the programs and activities of recipients of federal financial assistance; and other federal statutes such as the Air Carrier Access Act, 49 U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq. Compliance with the Department's ADA regulations does not necessarily ensure compliance with other federal statutes.

Public accommodations that are subject both to the Department's regulations and to regulations published by other federal agencies must ensure that they comply with the requirements of both regulations. If there is a direct conflict between the regulations, the regulation that provides greater accessibility will prevail. When different statutes apply to entities that routinely interact, each entity must follow the regulation that specifically applies to it. For example, a quick service restaurant in an airport is a public accommodation subject to title III. It regularly serves the passengers of air carriers subject to the Air Carrier Access Act (ACAA). The restaurant is subject to the title III requirements, not to the ACAA requirements. Conversely, the airline is required to comply with the ACAA, not with the ADA. The Roles of the Access Board and the Department of Justice

The Access Board was established by section 502 of the Rehabilitation Act of 1973. 29 U.S.C. 792. The Board consists of thirteen public members appointed by the President, of whom the majority must be individuals with disabilities, and the heads of twelve federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of
Transportation. Originally, the Access Board was established to develop and maintain accessibility guidelines for federally funded facilities under the Architectural Barriers Act of 1968 (ABA). 42 U.S.C. 4151 et seq. The passage of the ADA expanded the Access Board's
responsibilities. The ADA requires the Access Board to ``issue minimum guidelines that shall supplement the existing Minimum Guidelines and Requirements for Accessible Design for purposes of subchapters II and III of this chapter * * * to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible, in terms of architecture and design, transportation, and communication, to individuals with disabilities.'' 42 U.S.C. 12204. 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. Id. at 12134, 12186.

The Department was extensively involved in the development of the 2004 ADAAG. As a federal member of the Access Board, the Attorney General's representative voted to approve the revised guidelines. Although the enforceable standards issued by the Department under title II and title III must be consistent with the minimum guidelines published by the Access Board, it is the sole responsibility of the Attorney General to promulgate standards and to interpret and enforce those standards.

The ADA also requires the Department to develop regulations with respect to existing facilities subject to title II (Subtitle A) and title III. How and to what extent the Access Board's guidelines are used with respect to the barrier removal requirement applicable to existing facilities under title III of the ADA and to the provision of program accessibility under title II of the ADA are solely within the discretion of the Department.

The Revised Guidelines (2004 ADAAG)

Part I of the 2004 ADAAG provides scoping requirements for facilities subject to the ADA; scoping is a term used in the 2004 ADAAG to describe requirements (set out in Parts I and II) that prescribe what elements and spacesand, in some cases, how manymust comply with the technical specifications. Part II provides scoping (which is defined in the preamble of title 2) requirements for facilities subject to the ABA (i.e., facilities designed, built, altered, or leased with federal funds). Part III provides uniform technical specifications for facilities subject to either statute. This revised format is designed to eliminate unintended conflicts between the two federal accessibility standards and to minimize conflicts between the federal regulations and the model codes that form the basis of many state and local building codes.

The 2004 ADAAG is the culmination of a tenyear effort to improve ADA compliance and enforcement. In 1994, the Access Board began the process of updating the original ADAAG by establishing an advisory committee composed of members of the design and construction industry, the building code community, state and local government entities, and people with disabilities. In 1999, based largely on the report and recommendations of the advisory committee,\1\ the Access Board issued a proposed rule to update and revise its ADA and ABA Accessibility Guidelines.
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See 64 FR 62248 (Nov. 16, 1999). In response to its proposed rule, the Access Board received more than 2,500 comments from individuals with disabilities, affected industries, state and local governments, and others. The Access Board provided further opportunity for participation by holding public hearings throughout the nation. The Access Board worked vigorously from the beginning to harmonize the ADA and ABA Accessibility Guidelines with industry standards and model codes. The Access Board released an interim draft of its guidelines to the public on April 2, 2002, 67 FR 15509, in order to provide an opportunity for entities with model codes to consider amendments that would promote further harmonization. By the date of its final publication on July 23, 2004, 69 FR 44084, the 2004 ADAAG had been the subject of extraordinary public participation and review.
\1\ After a twoyear process of collaboration with the access Board, the Advisory Committee issued its Recommendations for a New ADAAG in September 1996, available at http://www.accessboard.gov/ pubs.htm.

In addition, the Access Board amended the ADAAG four times since 1998. In 1998, it added specific guidelines on state and local government facilities, 63 FR 2000 (Jan. 13, 1998), and building elements designed for use by children, 63 FR 2060 (Jan. 13, 1998). Subsequently, the Access Board added specific guidelines on play areas, 65 FR 62498 (Oct. 18, 2000), and on recreational facilities 67 FR 56352 (Sept. 3, 2002).

These amendments to the ADAAG have not previously been adopted by the Department as ADA Standards. Through this NPRM, the Department is announcing its intention to publish a proposed rule that will adopt revised ADA Standards consistent with the 2004 ADAAG, including all of the amendments to the ADAAG since 1998.

The Advance Notice of Proposed Rulemaking

The Department published an advance notice of proposed rulemaking (ANPRM) on September 30, 2004, 69 FR 58768, for two reasons: (1) To begin the process of adopting the Access Board's 2004 ADAAG by soliciting public input on issues relating to the potential application of the Access Board's revisions once the Department adopts them as revised standards; and (2) to request background information that would assist the Department in preparing a regulatory analysis under the guidance provided in OMB Circular A4, available at http:// www.whitehouse.gov/omb/circulars/a004/a4.pdf, Sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs). While underscoring that the Department, as a member of the Access Board, had already reviewed comments provided to the Access Board during its development of the 2004 ADAAG, the Department specifically requested public comment on the potential application of the 2004 ADAAG to existing facilities. The extent to which the 2004 ADAAG is used with respect to the barrier removal requirement applicable to existing facilities under title III (like the program access requirement in title II) is solely within the discretion of the Department. The ANPRM dealt with the Department's responsibilities under both title II and title III.

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

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

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

The Department must provide two types of assessments as part of its

FOR FURTHER INFORMATION CONTACT Janet L. Blizard, Deputy Chief, Disability Rights Section, Civil Rights Division, U.S. Department of Justice, at (202) 3070663 (voice or TTY). This is not a tollfree number. Information may also be obtained from the Department's toll free ADA Information Line at (800) 5140301 (voice) or (800) 5140383 (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.