28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Analysis of impact on small entities.

The second type of analysis that the Department has undertaken is a review of its existing regulations for title II and title III in order to consider the impact of those regulations on small entities. The review requires agencies to consider five factors:  (1) The continued need for the rule; (2) the nature of complaints or comments received concerning the rule from the public; (3) the complexity of the rule; (4) the extent to which the rule overlaps, duplicates, or conflicts with other federal rules, and, to the extent feasible, with state and local governmental rules; and (5) the length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.  5 U.S.C. 610(b).  Based on these factors, the agency should determine whether to continue the rule without change, or to amend or rescind the rule to minimize any significant economic impact of the rule on a substantial number of small entities.  Id. at 610(a).

In performing this review, the Department has gone through its regulation section by section, and, as a result, proposes several clarifications and amendments in this NPRM. Amendments to its title II regulation are proposed in the NPRM for title II published concurrently with this rule.  The proposals reflect the Department's analysis and review of complaints or comments from the public as well as changes in technology.  Many of the proposals aim to clarify and simplify the obligations of covered entities.  As discussed in greater detail above, a significant goal in the development of the 2004 ADAAG was to eliminate duplication or overlap in federal accessibility guidelines as well as to harmonize the federal guidelines with model codes.  The Department has also worked to create harmony where appropriate between the requirements of titles II and III.  Finally, while the regulation is required by statute and there is a continued need for it as a whole, the Department proposes several modifications that are intended to reduce its effects on small entities.