28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (2010 ADA Title II Regulations with amendments issued through Aug. 2016)

Final Regulatory Flexibility Analysis

The final rule also has been reviewed by the Small Business Administration's Office of Advocacy (Advocacy) in accordance with Executive Order 13272, 67 FR 53461, 3 CFR, 2003 Comp., p. 247. Chapter Seven of the Final RIA demonstrates that the final rule will not have a significant economic impact on a substantial number of small governmental jurisdictions or facilities. The Department has also conducted a final regulatory flexibility analysis (FRFA) as a component of this rulemaking. Collectively, the ANPRM, NPRM, Initial RIA, Final RIA, and 2010 Standards, include all of the elements of a FRFA required by the Regulatory Flexibility Act (RFA). See 5 U.S.C. 604(a)(1)–(5).

Section 604(a) lists the specific requirements for a FRFA. The Department has addressed these RFA requirements throughout the ANPRM, NPRM, the 2010 Standards, and the RIA. In summary, the Department has satisfied its FRFA obligations under section 604(a) by providing the following:

1. Succinct summaries of the need for, and objectives of, the final rules. The Department is issuing this final rule in order to comply with its obligations under both the ADA and the SBREFA. The Department is also updating or amending certain provisions of the existing title II regulations so that they are consistent with the title III regulations and accord with the Department's legal and practical experiences in enforcing the ADA.

The ADA requires the Department to adopt enforceable accessibility standards under the ADA that are consistent with the Access Board's minimum accessibility guidelines and requirements. Accordingly, this rule adopts ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, which will give the guidelines legal effect with respect to the Department's title II and title III regulations.

Under the SBREFA, the Department is required to perform a periodic review of its 1991 rule because the rule may have a significant economic impact on a substantial number of small entities. The SBREFA also requires the Department to make a regulatory assessment of the costs and benefits of any significant regulatory action. See preamble sections of the final rules for titles II and III entitled, ‘‘Summary'' and ‘‘The Department's Rulemaking History''; Department of Justice ANPRM, 69 FR 58768, 58768–70 (Sept. 30, 2004) (outlining the regulatory history, goals, and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA); Department of Justice NPRM, 73 FR 34508, 34508– 14 (June 17, 2008) (outlining the regulatory history and rationale underlying DOJ's proposal to revise its regulations implementing titles II and III of the ADA).

2. Summaries of significant issues raised by public comments in response to the Department's initial regulatory flexibility analysis (IRFA) and discussions of regulatory revisions made as a result of such comments. The Department received no comments addressing specific substantive issues regarding the IRFA for the title II NPRM. However, the Office of Advocacy (Advocacy) of the U.S. Small Business Administration did provide specific comments on the title III NPRM, which may be relevant to the title II IRFA. Accordingly, the Department has included those comments here.

Advocacy acknowledged how the Department took into account the comments and concerns of small entities. However, Advocacy remained concerned about certain items in the Department's NPRM and requested clarification or additional guidance on certain items.

General Safe Harbor. Advocacy expressed support for the Department's proposal to allow an element-by-element safe harbor for elements that now comply with the 1991 ADA Standards and encouraged the Department to include specific technical assistance in the Small Business Compliance Guide that the Department is required to publish pursuant to section 212 of the SBREFA. Advocacy requested that technical assistance outlining which standards are subject to the safe harbor be included in the Department's guidance. The Department has provided a list of the new requirements in the 2010 Standards that are not eligible for the safe harbor in § 35.150(b)(2)(ii)(A) through § 35.150(b)(2)(ii)(L) of the final rule and plans to include additional information about the application of the safe harbor in the Department's Small Business Compliance Guide. Advocacy also requested that guidance regarding the two effective dates for regulations also be provided and the Department plans to include such guidance in its Small Business Compliance Guide.

Indirect Costs. Advocacy expressed concern that small entities would incur substantial indirect costs under the final rules for accessibility consultants, legal counsel, training, and the development of new policies and procedures. The Department believes that such ‘‘indirect costs,'' even assuming they would occur as described by Advocacy, are not properly attributed to the Department's final rules implementing the ADA.

The vast majority of the new requirements are incremental changes subject to a safe harbor. All small entities currently in compliance with the 1991 Standards will neither need to undertake further retrofits nor require the services of a consultant to tell them so. If, on the other hand, elements at an existing facility are not currently in compliance with the 1991 Standards, then the cost of making such a determination and bringing these elements into compliance are not properly attributed to the final rules, but to lack of compliance with the 1991 Standards.

For the limited number of requirements in the final rule that are supplemental (i.e., relating to accessibility at courthouses, play areas, and recreation facilities), the Department believes that covered entities simply need to determine whether they have an element covered by a supplemental requirement (e.g., a swimming pool) and then conduct any work necessary to provide program access either in-house or by contacting a local contractor. Determining whether such an element exists is expected to take only a minimal amount of staff time. Nevertheless, Chapter 5.3 of the Final RIA has a high-end estimate of the additional management costs of such evaluation (from 1 to 8 hours of staff time).

The Department also anticipates that small entities will incur minimal costs for accessibility consultants to ensure compliance with the new requirements for New Construction and Alterations in the final rules. Both the 2004 ADAAG and the proposed requirements have been made public for some time and are already being incorporated into design plans by architects and builders. Further, in adopting the final rules, the Department has sought to harmonize, to the greatest extent possible, the ADA Standards with model codes that have been adopted on a widespread basis by State and local jurisdictions across the country. Accordingly, many of the requirements in the final rules are already incorporated into building codes nationwide. Additionally, it is assumed to be part of the regular course of business—and thereby incorporated into standard professional services or construction contracts—for architects and contractors to keep abreast of changes in applicable Federal, State, and local laws and building codes. Given these considerations, the Department has determined that the additional costs, if any, for architectural or contractor services that arise out of the final rules are expected to be minimal.

Some business commenters stated that the final rules would require them to develop new policies or manuals to retrain employees on the revised ADA standards. However, it is the Department's view that because the revised and supplemental requirements address architectural issues and features, the final rules would require minimal, if any, changes to the overall policies and procedures of covered entities.

Finally, commenters representing business interests expressed the view that the final rules would cause businesses to incur significant legal costs in order to defend ADA lawsuits. However, regulatory impact analyses are not an appropriate forum for assessing the cost covered entities may bear, or the repercussions they may face, for failing to comply (or allegedly failing to comply) with current law. See Final RIA, Ch. 3, section 3.1.4, id., at Ch. 5, id. at table 15.

3. Estimates of the number and type of small entities to which the final rules will apply. The Department estimates that the final rules will apply to approximately 89,000 facilities operated by small governmental jurisdictions covered by title II. See Final RIA, Ch. 7, ‘‘Small Business Impact Analysis,'' table 17, and app. 5, ‘‘Small Business Data of the RIA'' (available for review at http://www.ada.gov); see also 73 FR 36964 (June 30, 2008), app. B: Initial Regulatory Assessment, sections entitled, ‘‘Regulatory Alternatives,'' ‘‘Regulatory Proposals with Cost Implications,'' and ‘‘Measurement of Incremental Benefits'' (estimating the number of small entities the Department believes may be impacted by the NPRM and calculating the likely incremental economic impact of these rules on small facilities or entities versus ‘‘typical'' (i.e., average-sized) facilities or entities).

4. A description of the projected reporting, record-keeping, and other compliance requirements of the final rules, including an estimate of the classes of small entities that will be subject to the requirement and the type of professional skills necessary for preparation of the report or record. The final rules impose no new recordkeeping or reporting requirements. See preamble sections of the final rule for titles II and III entitled, ‘‘Paperwork Reduction Act.'' Small entities may incur costs as a result of complying with the final rules. These costs are detailed in the Final RIA, Chapter 7, ‘‘Small Business Impact Analysis'' and accompanying Appendix 5, ‘‘Small Business Data'' (available for review at http://www.ada.gov).

5. Descriptions of the steps taken by the Department to minimize any significant economic impact on small entities consistent with the stated objectives of the ADA, including the reasons for selecting the alternatives adopted in the final rules and for rejecting other significant alternatives. From the outset of this rulemaking, the Department has been mindful of small entities and has taken numerous steps to minimize the impact of the final rule on small governmental jurisdictions. Several of these steps are summarized below.

As an initial matter, the Department— as a voting member of the Access Board—was extensively involved in the development of the 2004 ADAAG. These guidelines, which are incorporated into the 2010 Standards, reflect a conscious effort to mitigate any significant economic impact on small entities in several respects. First, one of the express goals of the 2004 ADAAG is harmonization of Federal accessibility guidelines with industry standards and model codes that often form the basis of State and local building codes, thereby minimizing the impact of these guidelines on all covered entities, but especially small entities. Second, the 2004 ADAAG is the product of a 10-year rulemaking effort in which a host of private and public entities, including groups representing government entities, worked cooperatively to develop accessibility guidelines that achieved an appropriate balance between accessibility and cost. For example, as originally recommended by the Access Board's Recreation Access Advisory Committee, all holes on a miniature golf course would be required to be accessible except for sloped surfaces where the ball could not come to rest. See, e.g., ‘‘ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities and Outdoor Developed Areas,'' Access Board Advance Notice of Proposed Rulemaking, 59 FR 48542 (Sept. 21, 1994). Miniature golf trade groups and facility operators, who are nearly all small businesses or small governmental jurisdictions, expressed significant concern that such requirements would be prohibitively expensive, require additional space, and might fundamentally alter the nature of their courses. See, e.g., ‘‘ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities,'' Access Board Notice of Proposed Rulemaking, 64 FR 37326 (July 9, 1999). In consideration of such concerns, and after holding informational meetings with miniature golf representatives and persons with disabilities, the Access Board significantly revised the final miniature golf guidelines. The final guidelines not only reduced significantly the number of holes required to be accessible to 50 percent of all holes (with one break in the sequence of consecutive holes permitted), but also added an exemption for carpets used on playing surfaces, modified ramp landing slope and size requirements, and reduced the space See, e.g., ‘‘ADA Accessibility Guidelines for Buildings and Facilities—Recreation Facilities Final Rule,'' 67 FR 56352, 56375B76 (Sept. 3, 2002) (codified at 36 CFR parts 1190 and 1191).

The Department also published an ANPRM to solicit public input on the adoption of the 2004 ADAAG as the revised Federal accessibility standards implementing titles II and III of the ADA. Among other things, the ANPRM specifically invited comment from small entities regarding the proposed rules' potential economic impact and suggested regulatory alternatives to ameliorate any such impact. See ANPRM, 69 FR 58768, 58778-79 (Sept. 30, 2004). The Department received over 900 comments and small entities' interests figured prominently. See NPRM, 73 FR 34466, 34468, 34468, 34501 (June 17, 2008).

Subsequently, when the Department published its NPRM in June 2008, several regulatory proposals were included to address concerns raised by small businesses and small local governmental jurisdictions in ANPRM comments. First, to mitigate costs to existing facilities, the Department proposed an element-by-element safe harbor that would exempt elements in compliance with applicable technical and scoping requirements in the 1991 Standards from any program accessibility retrofit obligations under the revised title II rules. Id. at 34485. While this proposed safe harbor applied to title-II covered entities irrespective of size, it was small governmental jurisdictions that especially stood to benefit since, according to comments from small entities, such jurisdictions are more likely to operate in older buildings and facilities. Additionally, the NPRM sought public input on the inclusion of reduced scoping provisions for certain types of small existing recreational facilities (i.e., swimming pools, play areas, and saunas). Id. at 34485-88.

During the NPRM comment period, the Department engaged in considerable public outreach to small entities. A public hearing was held in Washington, D.C, during which nearly 50 persons testified in person or by phone, including several small business owners. See Transcript of the Public Hearing on Notices of Proposed Rulemaking (July 15, 2008), available at http://www.ada.gov/NPRM2008/public_hearing_transcript.htm. This hearing was also streamed live over the Internet. By the end of the 60-day comment period, the Department had also received nearly 4,500 public comments on the NPRMs, including a significant number of comments reflecting the perspectives of small governmental jurisdictions on a wide range of regulatory issues.

In addition to soliciting input from small entities through the formal process for public comment, the Department also targeted small entities with less formal regulatory discussions, including a Small Business Roundtable convened by the Office of Advocacy and held at the offices of the Small Business Administration in Washington, DC, and an informational question-and-answer session concerning the title II and III NPRMs at the Department of Justice in which business representatives attended in-person and by telephone. These outreach efforts provided the small business community with information on the NPRM proposals being considered by the Department and gave small entities the opportunity to ask questions of the Department and provide feedback.

As a result of the feedback provided by representatives of small business interests on the title II NPRM, the Department was able to assess the impact of various alternatives on small governmental jurisdictions before adopting its final rule and took steps to minimize any significant impact on small entities. Most notably, the final rule retains the element-by-element safe harbor, for which the community of small businesses and small governmental jurisdictions voiced strong support. See Appendix A discussion of safe harbor (§ 35.150(b)(2)). The Department believes that this element-by-element safe harbor provision will go a long way toward mitigating the economic impact of the final rule on existing facilities owned or operated by small governmental jurisdictions.

Additional regulatory measures mitigating the economic impact of the final rule on entities covered by title II (including small governmental jurisdictions) include deletion of the proposed requirement for captioning of safety and emergency information on scoreboards at sporting venues, retention of the proposed path of travel safe harbor, and extension of the compliance date of the 2010 Standards as applied to new construction and alterations from 6 months to 18 months after publication of the final rule. See Appendix A discussions of captioning at sporting venues (§ 35.160), path of travel safe harbor  (§ 35.151(b)(4)(ii)(C)), and accessibility standards compliance dates for new construction and alterations (§ 35.151(c)).

One set of proposed alternative measures that would have potentially provided some cost savings to small public entities—the reduced scoping for certain existing recreational facilities— was not adopted by the Department in the final rule. While these proposals were not specific to small entities, they nonetheless might have mitigated the impact of the final rule for some small governmental jurisdictions that owned or operated existing facilities at which these recreational elements were located. See Appendix A discussion of existing facilities. The Department gave careful consideration to how best to insulate small entities from overly burdensome costs under the 2010 Standards for existing small play areas, swimming pools, and saunas, while still ensuring accessible and integrated recreational facilities that are of great importance to persons with disabilities. The Department concluded that the existing program accessibility standard (coupled with the new general element-by-element safe harbor), rather than specific exemptions for these types of existing facilities, is the most efficacious method by which to protect small governmental jurisdictions.

Once the final rule is promulgated, small entities will also have a wealth of documents to assist them in complying with the 2010 Standards. For example, accompanying the title III final rule in the Federal Register is the Department's ‘‘Analysis and Commentary on the 2010 ADA Standards for Accessible Design'' (codified as Appendix B to 28 CFR part 36), which provides a plain language description of the revised scoping and technical requirements in these Standards and provides illustrative figures. The Department also expects to publish guidance specifically tailored to small businesses in the form of a small business compliance guide, as well as to publish technical assistance materials of general interest to all covered entities following promulgation of the final rule. Additionally, the Access Board has published a number of guides that discuss and illustrate application of the 2010 Standards to play areas and various types of recreational facilities.