DOJ extension on pool lift requirement until January 2013

Billing Code: 4410-13

DEPARTMENT OF JUSTICE
28 CFR Parts 35 and 36
CRT Docket No. 123; A.G. Order No. 3332-2012
RIN 1190-AA69

Amendment of Americans with Disabilities Act Title II and Title III Regulations to Extend
Compliance Date for Certain Requirements Related to Existing Pools and Spas Provided
by State and Local Governments and by Public Accommodations
AGENCY: Department of Justice, Civil Rights Division.
ACTION: Final rule.
SUMMARY: This final rule revises the Department of Justice regulations implementing the
Americans with Disabilities Act to extend until January 31, 2013, the compliance date for the
application of sections 242 and 1009 of the 2010 Americans with Disabilities Act (ADA)
Standards for Accessible Design for existing pools and spas.
EFFECTIVE DATE: This rule will take effect on 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).
SUPPLEMENTARY INFORMATION:
Background
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
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III (public accommodations and commercial facilities) on September 15, 2010. See 75 FR
56164, 56236 (September 15, 2010). The revised ADA rules were the result of a six-year
process to update the Department’s ADA regulations. As part of this process, the Department
sought 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. This process
culminated with publication of the Department’s final rules on September 15, 2010.
As part of this revision, the Department adopted the 2010 ADA Standards for Accessible
Design (“2010 Standards”). A copy of the 2010 ADA Standards is available at
http://www.ada.gov/2010ADAstandards_index.htm. The 2010 Standards replace the 1991 ADA
Standards for Accessible Design and, for the first time, contain specific accessibility
requirements for certain types of recreational facilities, including the requirement to provide
accessible means of entry and exit to swimming pools, wading pools, and spas. With limited
exceptions, the Department’s revised ADA title II and title III regulations went into effect on
March 15, 2011. The regulations provided that covered entities were not obligated to comply
with the 2010 Standards until March 15, 2012 (the compliance date).
The 2010 Standards are based in large part on the 2004 ADA Accessibility Guidelines,
which were adopted by the United States Access Board (“Access Board”) in 2004 following a
decade-long effort to revise the Board’s 1991 ADA Accessibility Guidelines. See 69 FR 44084
(July 23, 2004). 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, 42 U.S.C. 12134(c), 12186(c). The
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Attorney General has sole responsibility for promulgating accessibility standards that fall within
the Department’s jurisdiction and enforcing the Department’s regulations, which include the
accessibility standards.
The 2010 Standards set minimum scoping and technical requirements for accessible
means of entry (and exit) for newly constructed and altered swimming pools, wading pools, and
spas (collectively, “pools”). The 2010 Standards include requirements for accessible means of
entry for large and small pools. These requirements are found at sections 242 and 1009 of the
2010 Standards. Specifically, section 242 provides that large pools (pools with 300 linear feet of
pool wall or more) must have two accessible means of entry, one of which must be a pool lift or
sloped entry; the other accessible means of entry include a transfer wall, transfer system, or pool
stairs. Small pools (pools with less than 300 linear feet of pool wall) must provide at least one
accessible means of entry, which must be either a pool lift or a sloped entry.
The 2010 Standards also provide details about what features an accessible means of entry
should include. Specifically, section 1009 addresses pool lift requirements such as the location,
size of the seat, lifting capacity, and clear floor space, as well as the requirements for sloped
entry, transfer wall, transfer system, or pool stairs.
Sections 35.151(d) and 36.406(b) of the respective title II and title III regulations specify
that the 2010 Standards only apply to fixed or built-in elements. Sections 35.151(c) and
36.406(a) provide that the 2010 Standards apply to new construction and alterations of covered
buildings and facilities.
With regard to existing facilities, the title II rule published in 2010 provided that, as of
March 15, 2012, the 2010 Standards apply whenever public entities choose to meet their title II
ADA program accessibility obligations by making structural alterations to their existing
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facilities, 28 CFR 35.150(b)(1).1 The title III rule published in 2010 provided that on or after
March 15, 2012, public accommodations must generally use the 2010 Standards as the
benchmark for their ongoing obligation to remove architectural barriers in existing facilities to
the extent such compliance is readily achievable. 28 CFR 36.304(d).2 As discussed below, with
respect to the provision of title II program accessibility and title III readily achievable barrier
removal, the Department has postponed the compliance date for the specific requirements in the
2010 Standards relating to accessible means of entry for existing pools until May 21, 2012.
Under the ADA, the Department is responsible for providing technical assistance to
entities covered by titles II and III to help them understand their obligations under the ADA.
42 U.S.C. 12206(c)(1). Since issuing its revised rule, the Department has developed and
published technical assistance documents to assist entities to understand the revised regulations.
To help educate pool owners and operators concerning the requirements imposed by the
Department’s 2010 regulations, 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. Available at
http://www.ada.gov/pools_2010.htm. This document provided an overview of the new
accessibility requirements for pools and discussed the application of the requirements in the
context of the longstanding obligations of covered entities to provide readily achievable barrier
removal (title III) and program accessibility (title II).
1 Section 35.150(b)(1) of the title II regulation, which addresses program accessibility in existing facilities, provides
state and local governments with flexibility to use other means such as acquisition or redesign of equipment, or
reassignment of programs or services to accessible buildings, in lieu of making structural alterations to facilities
when they are providing program accessibility in their existing programs, services, or activities.
2 Section 36.304(d)(1) requires covered entities to apply the alterations provisions of the regulations (except the path
of travel provisions) when removing barriers, but only to the extent that it is readily achievable to do so. Section
36.304(d)(2)(iii) provides that elements in existing facilities that are subject to the supplemental requirements,
including the accessible means of entry requirements for pools and spas, must be modified to the extent readily
achievable to comply with the 2010 Standards.
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Inquiries received by the Department both prior to the TA Document’s publication and in
response to the TA Document revealed that there were significant concerns and
misunderstandings among a substantial number of pool owners and operators with respect to
what was required for title III entities in order to engage in readily achievable barrier removal, or
for title II entities to provide program accessibility with respect to their existing pools now that
the ADA regulations included minimum scoping and technical requirements for accessible
means of entry for pools. 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. For example, some pool owners and operators believed,
incorrectly, that providing non-fixed lifts (lifts that are not attached to the pool deck and often
referred to as portable lifts) would in all circumstances achieve compliance with the ADA
regulations, even in circumstances where providing a fully compliant lift is readily achievable.
Others expressed the view that they would have to close pools due to an inability to provide
access, even though the regulations allow pool owners and operators to use non-fixed lifts or no
lifts at all in circumstances where the provision of access is not readily achievable. The vast
majority of pool owners and operators expressing these concerns were title III entities.
Recognizing the extent of the misunderstandings in determining appropriate compliance
when faced with an immediate compliance date, and consistent with Executive Order 13563,
“Improving Regulation and Regulatory Review” (with its emphasis on promoting predictability
and public participation), the Department determined that it would be impracticable and contrary
to the public interest to retain the March 15, 2012, compliance date for application of these
requirements to existing pools. 77 FR 16163, 16164 (March 20, 2012). Thus, the Department
issued a Final Rule extending the date for compliance with sections 242 and 1009 of the 2010
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Standards as they relate to existing pools (pools built before March 15, 2012) from March 15,
2012, to May 21, 2012. 77 FR 16163, 16163 (March 20, 2012).3 The Department’s action had
no effect on the compliance date for these requirements as they applied to newly constructed
pools or pools altered for purposes other than to provide program accessibility or barrier removal
(e.g., scheduled alterations or improvements).
Contemporaneously with issuing the rule extending the compliance date for existing
pools until May 21, 2012, the Department issued an NPRM seeking public comment regarding
whether a longer extension of the compliance date would be appropriate to allow pool owners
and operators additional time to meet their obligations with regard to providing access into their
existing pools. 77 FR 16196 (March 20, 2012). Specifically, the Department requested
comment on a proposed extension that would postpone the required compliance date for sections
242 and 1009 of the 2010 Standards until September 17, 2012—a total of just over 180 days
from the original March 15, 2012, compliance date specified in the September 2010 final
regulations. The NPRM proposed that this extension would “provide pool owners and operators
additional time to evaluate and comply with their program accessibility and readily achievable
barrier removal obligations with respect to sections 242 and 1009 of the 2010 Standards.” 77 FR
at 16198. The Department also anticipated that an extension would serve “the interest of
promoting clear and consistent application of the ADA’s requirements to existing facilities.” 77
FR at 16196. The proposed extension would have no impact on the March 15, 2012, compliance
date for new construction and alterations of swimming pools and spas. In addition, the NPRM
made it clear that, although the Department was considering extending the compliance date for
3 See 77 FR at 16163 (“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.”). The
referenced sections in 28 CFR for which the compliance date was delayed apply only to existing facilities, not to
new construction or alterations.
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the application of the requirements to existing pools, the NPRM was not proposing to change
those requirements or modify the ADA regulations in any other way and, thus, the Department
was not soliciting comments on the merits of the requirements. 77 FR at 16197.
Discussion of Public Comments
In response to its proposal, the Department received approximately 1,915 public
comments from individuals with disabilities, organizations representing individuals with
disabilities, pool owners and operators, and other entities covered by the regulations.
Approximately 1,420 commenters supported the proposal and approximately 495 commenters
opposed it. While the vast majority of commenters were concerned about the impact of the
requirements on title III public accommodations, there were some comments from title II
entities.
Organizations representing the hotel industry and individual owners and operators of
hotels and campgrounds provided the largest number of comments in support of postponing the
compliance date. Of these comments, approximately 520 were form comments submitted
anonymously. Other commenters who supported the proposal included homeowners
associations, pool lift manufacturers, individual owners and operators of pools and spas, and
some title II entities. Commenters opposed to the proposed extension included many
organizations representing persons with disabilities, including veterans with disabilities,
numerous individuals with disabilities, and some title II entities. Many comments illustrated the
kinds of misunderstandings and concerns that led to the Department’s decision to propose the
extension. This final rule will not address specific comments about the merits of the
requirements for accessible means of entry for pools, except to the extent that they illustrate
these misunderstandings or provide support or opposition for the proposed compliance date
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extension.
The Department received numerous comments opposing a further extension of the
effective date for the provisions requiring an accessible means of entry for existing pools.
Commenters with disabilities and their families, as well as organizations representing individuals
with disabilities, urged the Department not to extend the deadline further. These commenters
provided a variety of reasons why the deadline should not be extended. Some commenters
objected on the grounds that the regulatory process, which included numerous opportunities for
public comment, had yielded carefully constructed regulations and accessibility standards.
Several commenters noted that entities have had nearly two years to plan for and comply with
the revised requirements for access into existing pools and, thus, additional time was
unnecessary. One organization representing individuals with disabilities noted that the barrier
removal concept has not changed since the ADA was passed in 1990 and that title III entities
have had over 20 years and extensive technical assistance on the concept to understand their
obligations. The organization believed an additional four months would not yield a better
understanding. The same organization felt strongly that the extension was inappropriate for title
II entities, which have long been required to address access into their existing pools under the
program access requirement.
Many commenters emphasized the negative impact that an extension would have for
individuals with disabilities. Commenters stated that an extension would require them to
continue to pay full price for a hotel room during the extension period while not having full
access to the amenities of the facilities. One commenter took issue with the categorization of
pool access as a luxury, stating that access to other amenities, such as restaurants, could similarly
be considered luxuries, yet access to such amenities is required for all paying customers.
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Some of the most moving comments came from families with individuals with
disabilities. Parents of children with disabilities shared their stories of how their children were
getting too big for them to carry in and out of the pool safely or with dignity. Several recounted
how their older children loved to swim and wanted to partake in family outings to the pool, but
then explained that it was difficult to safely transfer a wet and slippery child across a slick pool
deck. Parents with disabilities also lamented their inability to join their children in the pool. For
these families, an extension of the compliance date for the pool requirements would mean
another year of summer vacations without access.
The Department also heard from organizations representing veterans with disabilities
who indicated that, after a decade of war, a significant number of service members have returned
with injuries and are reintegrating into their communities by participating in adaptive sports and
that these individuals should have access to pools and spas in their communities without further
delay. One veteran with a disability stated that he had very few methods of exercise that he
could use to stay in shape and expressed frustration about having to travel long distances to a
pool with a compliant lift for his weekly swim. Many other commenters also stated that
swimming was one of the few exercises available to many individuals with disabilities and that
the extension would further delay pool access that has been long sought.
Several state-level advisory organizations on disability issues provided comments
opposing the extension. These organizations stated that they believed that there had been ample
time for title II and title III entities to comply and that delaying implementation further would
constitute a roll-back of the ADA. These organizations were especially concerned about the
resistance of public accommodations in their states to implement the new requirements and the
impact this would have on residents and visitors with disabilities.
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The Department also received numerous comments supporting a further extension of the
effective date for the provisions requiring an accessible means of entry for existing pools,
primarily as they apply to the obligations of title III entities to engage in barrier removal. Many
of these commenters supported a longer extension for the compliance period, for a minimum of
six additional months. These commenters believed that an extension of the compliance date was
necessary in order to give public accommodations sufficient time to fully understand and
implement the pool access requirements and to arrange for installation of fixed lifts (lifts that are
attached to the pool deck), given that many pool owners and operators had previously believed
that portable lifts were permissible even when it was readily achievable to provide a fixed lift.
Two other categories of comments, primarily provided by owners and operators of
pools at public accommodations who supported the Department’s proposal to extend the
compliance date, further underscored the misunderstandings and concerns that have arisen about
the pool accessibility requirements adopted in the 2010 Standards. First, some commenters
suggested that the requirement that the pool lift be fixed was not part of the title III regulation
published by the Department in September 2010, but was, instead, an interpretation the
Department later developed outside of the rulemaking process. However, the Department has
had a longstanding position that the ADA Standards apply to fixed and built-in elements. See,
e.g., Department of Justice, Americans with Disabilities Act, ADA Title III Technical Assistance
Manual Covering Public Accommodations and Commercial Facilities (Supp. 1994), III-5.3000,
available at http://www.ada.gov/taman3up.html, (providing that “[o]nly equipment that is fixed
or built in to the facility, is covered by the accessibility standards”). The Department codified
that position in both the revised title II and title III regulations, see 28 CFR 35.151(d) and
36.406(b). Throughout the six-year process of revising the ADA regulations, the Department
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stated that the ADA Standards did not apply to freestanding (e.g., non-fixed, moveable, or
portable) equipment. For example, the 2004 ANPRM included a section entitled, “Application
of ADA Standards and ADA to Free-Standing Equipment,” in which the Department stated that
the ADA Standards do not apply to portable equipment. See 69 FR 58768, 58775 (Sept. 30,
2004) (providing that “the revised ADA Standards will apply directly only to fixed equipment—
as described above, equipment that becomes built into the structure of a facility—and not to freestanding
equipment”). The 2008 title III NPRM and the 2010 Final Rules reiterated this point.
See 73 FR 34508, 34543 (June 17, 2008) (“The Department is proposing a new § 36.406(b) that
would clarify that the requirements established by this section, including those contained in the
proposed standards (and the 2004 [ADA Accessibility Guidelines]) prescribe the requirements
necessary to ensure that fixed or built-in elements in new or altered facilities are accessible to
people with disabilities.”); 75 FR 56236, 56303 (Sept. 15, 2010) (“The final [title III] rule
contains a new § 36.406(b) that clarifies that the requirements established by this section,
including those contained in the 2004 [ADA Accessibility Guidelines], prescribe the
requirements necessary to ensure that fixed or built-in elements in new or altered facilities are
accessible to individuals with disabilities.”).4
Section 36.304(d) of the title III regulation specifies that measures taken to comply with
the readily achievable barrier removal requirement must comply with the applicable
requirements for alterations as set forth in § 36.402 and §§ 36.404 through 36.406, which
4 Moreover, the Regulatory Impact Analysis (RIA) for the final rule looked at the costs with respect to fixed and
built-in elements when analyzing the provisions of the 2010 Standards. With respect to pools, the RIA included
both the cost of purchasing a lift as well as the cost of installing the lift for barrier removal in existing pools. See
Final RIA at pp. 59-60, 283 (July 23, 2010), available at
http://www.ada.gov/regs2010/RIA_2010regs/DOJ%20ADA%20Final%20RIA.pdf.
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reference the 2010 Standards. Given that the ADA Standards apply only to fixed or built-in
elements, the title III regulation requires the use of fixed elements when removing barriers in
existing facilities unless it is not readily achievable to do so. Thus, it follows that public
accommodations engaged in barrier removal must provide a fixed or built-in lift in existing pools
as long as it is readily achievable.
A second group of commenters who owned or operated public accommodations and who
supported the extension mistakenly believed that if they could not comply with the pool access
requirements of the 2010 Standards (because compliant pool lifts were unavailable or they could
not afford to provide a lift, for example), they would be forced to close their pools. This is also a
misunderstanding of the ADA regulations. Compliance with the 2010 Standards is only required
to the extent that it is “readily achievable”—a term that means “easily accomplishable and able
to be carried out without much difficulty or expense.” See 28 CFR 36.104. Thus, title III of the
ADA does not require that a public accommodation close its pool facility if, for example,
compliant pool lifts are not available or if the facility cannot afford such a lift. In such
circumstances, a public accommodation can achieve compliance with its ADA obligations
without installing a fully compliant pool lift, because that measure would not be “easily
accomplishable” or “able to be carried out without much difficulty or expense.” Id. The revised
2010 title III regulation, like the 1991 regulation that preceded it, implements the “readily
achievable” definition established by Congress in the statute and maintains unchanged the
definition of “readily achievable” incorporated in the 1991 regulation.
To determine whether providing an accessible means of entry to an existing pool is
readily achievable, businesses must use the same general barrier removal analysis that has
always applied to other covered elements in existing facilities. Both the ADA statute, which
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Congress passed in 1990, and the Department’s ADA title III regulation, which was originally
published in 1991, set out a case-by-case analysis to be used in determining whether removing
certain barriers is readily achievable. Specifically, the regulations provide at § 36.104 that in
determining whether an action is readily achievable, the factors to be considered include:
(1) The nature and cost of the action;
(2) The overall financial resources of the site or sites involved, the number of persons
employed at the site, the effect on expenses and resources, legitimate safety requirements
necessary for safe operation, including crime prevention measures, and any other impact of the
action on the operation of the site;
(3) The geographic separateness, and the administrative or fiscal relationship of the site
or sites in question to any parent corporation or entity;
(4) If applicable, the overall financial resources of any parent corporation or entity, the
overall size of the parent corporation or entity with respect to the number of its employees, and
the number, type, and location of its facilities; and
(5) If applicable, the type of operation or operations of any parent corporation or entity,
including the composition, structure, and functions of the workforce of the parent corporation or
entity.5
Under this standard, which has applied to places of public accommodation since 1991,
5 Since the title III regulation first took effect, the Department has provided extensive technical assistance regarding
the readily achievable barrier requirement for existing facilities. The technical assistance material provided by the
Department contains examples of the application of this requirement. Pool owners and operators can access
information on barrier removal on the Department’s ADA website, www.ada.gov. Publications that address barrier
removal include, but are not limited to, the 1993 ADA Title III Technical Assistance Manual (Section III-4.4200),
available at http://www.ada.gov/taman3.html, the 1996 ADA Guide for Small Businesses (revised and reissued in
1999), which was published in conjunction with the Small Business Administration (“SBA”), available at
http://www.ada.gov/smbusgd.pdf, and a 2005 online course entitled “Reaching Out to Customers With Disabilities,”
which is available at http://www.ada.gov/reachingout/intro1.htm.
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hotels and other public accommodations will not be required to close their existing pools if
compliance with the applicable ADA Accessibility Standards is not easily accomplishable or
able to be carried out without much difficulty or expense. Similarly, the inability of a public
accommodation to install a lift due to insufficient space at the side of the pool deck would be
addressed by using the barrier removal analysis, which does not require entities to undertake
changes that cannot be accomplished without much difficulty or expense.
Several commenters, including a pool lift manufacturer, supported an extension on the
basis that there is currently a significant backlog in availability of compliant lifts. They were
concerned that if the pool access requirements took effect, pool owners and operators who could
not acquire a lift because of a manufacturing backlog would be in violation of the ADA.
However, the lack of availability of a compliant lift because of limitations in manufacturing
capacity would demonstrate that it is not readily achievable to comply with the requirements,
until such time as a lift becomes available.
The Department received a small number of comments from title II entities, the majority
of which were from small local governments. Most of these commenters favored the proposed
extension. A number of them believed a moveable lift was appropriate to comply with the
revised ADA requirements and had not accounted for the costs associated with a fixed pool lift in
their yearly budgets. As a result, these entities supported the extension in order to secure
additional funding. However, the title II program accessibility requirements allow the use of
equipment as an alternative to making structural changes to an existing facility; thus these
entities would not necessarily have to provide a fixed lift in order to satisfy their program
accessibility obligation.6
6 Section 35.150 requires that title II entities operate each service, program or activity, so that when viewed in its
entirety, the service, program or activity is readily accessible to and usable by individuals with disabilities.
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Some title II entities stated that they would have to close down community pools rather
than incur the expense of complying with the regulation. To the contrary the title II program
accessibility regulation does not require title II entities to make changes to their programs,
services, or activities if the changes would constitute a fundamental alteration or would impose
an undue financial and administrative burden. Title II does not require a facility to close when
compliance with the program accessibility requirements poses an undue financial and
administrative burden. This is the case whether the title II facility in question is a public office, a
school, or a swimming pool.
Some of the comments the Department received reflected misconceptions about the
abilities of persons with disabilities to participate in the same activities that are afforded persons
without disabilities. The ADA was intended, in part, to address these misconceptions.
Without the pool access requirement of the regulations, it is clear that many individuals
with disabilities would not be able to avail themselves of pool amenities offered by covered
entities. As noted by many commenters opposed to the proposed extension, individuals with
disabilities have long awaited the ADA Accessibility Standards that address access to
recreational facilities, such as pools. These comments illustrate the significant impact that a
further extension would have on many individuals with disabilities and their families during yet
another summer pool season. On the other hand, as stated above and in the Department’s
NPRM, it is clear to the Department that a significant number of pool owners and operators may
continue to have misunderstandings and concerns about their obligations with regard to
providing access to existing pools. These misunderstandings have affected pool operators and
owners in at least three ways that are relevant to the Department’s proposal. First, it appears that
some places of public accommodation initially proceeded on the misunderstanding that a
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portable pool lift would in all circumstances satisfy the pool accessibility requirements of the
2010 Standards. Those pool operators and owners will need time to undertake a fact-specific
analysis about whether the installation of a fully compliant pool lift is “readily achievable,” and
to implement their compliance plan. Second, the comments suggested that at least some pool
owners and operators who generally speaking would find installation of a compliant pool lift to
be “readily achievable” currently are having difficulty locating compliant pool lifts that are
available for purchase. The Department believes that this circumstance provides an additional
reason to postpone the compliance date, thereby allowing a greater number of covered entities to
purchase and install compliant pool lifts. Third, comments received by the Department also raise
concerns that, absent an extension, some covered entities might respond to the compliance date
by taking steps that the law does not require and that would actually undermine the goal of
ensuring that individuals with disabilities obtain the benefits that the regulations sought to
ensure—safe and compliant pool access to existing pools when it is readily achievable to provide
it. For example, if pool owners and operators close pools because they incorrectly believe that
the 2010 Standards require that a fully compliant pool lift must be installed in all cases, those
closures will reduce access to pools for everyone, including individuals with disabilities.
Similarly, if pool owners and operators are unable to obtain compliant lifts because of the lack of
availability, they may unwittingly purchase non-compliant lifts that will not provide safe and
independent pool access to persons with disabilities.
After carefully considering all of these factors, including the unique burdens that an
additional postponement would impose on individuals with disabilities, the Department has
concluded that a further extension of the compliance date is warranted. Although the
Department originally proposed a four-month extension until September 17, 2012, based on the
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breadth of the concerns and the misunderstandings about the requirements expressed in the
comments the Department received, the Department has decided to extend the compliance date
for sections 242 and 1009 of the 2010 Standards for existing pools subject to title III barrier
removal and to title II program access until January 31, 2013. That date is one year from the
date that the Department issued its initial guidance clarifying that the ADA regulations required
fixed pool lifts, and is still well in advance of next year’s swim season. The Department
emphasizes that this extension is consistent with Executive Order 13563, which emphasizes the
importance of promoting predictability and reducing uncertainty, and which also stresses the
value of public participation and an “open exchange of information and perspectives.”
This longer extension will provide additional time for the Department to continue to
educate covered entities about their obligations under the 2010 Standards with regard to
providing access into their existing pools, to respond to relevant concerns, and to address
misunderstandings that could lead covered entities to take unnecessary and counterproductive
steps, thereby allowing all stakeholders to have the same understanding of what is required by
the ADA and promoting broader compliance with the rule. The Department also believes that
the additional time will allow covered entities to complete the fact-specific evaluation required
by the “readily achievable” standard, and to implement their compliance plans, including by
taking the steps necessary to comply with the pool accessibility requirements of the 2010
Standards.
Section-By-Section Analysis
Section 35.150(b)(1)
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Currently, § 35.150(b)(1) specifies that if a public entity chooses to make structural
alterations to existing buildings in order to meet its program accessibility obligations, it shall
comply with the accessibility requirements set forth in § 35.151. The current title II regulation
specifies, at § 35.151(c)(3), that all facilities that are newly constructed or altered on or after
March 15, 2012 must comply with the 2010 Standards.7 The final rule postpones the compliance
date, as applied to the requirements for accessible means of entry for existing pools, by adding a
new paragraph (b)(4) to § 35.150. The new paragraph reads: “The requirements set forth in
sections 242 and 1009 of the 2010 Standards shall not apply until January 31, 2013, if a public
entity chooses to make structural changes to existing swimming pools, wading pools, or spas
built before March 15, 2012, for the sole purpose of complying with the program accessibility
requirements set forth in this section.
Section 36.304
Section 36.304(d) currently specifies that on or after March 15, 2012, public
accommodations must generally use the 2010 Standards as the benchmark for their ongoing
obligation to remove architectural barriers in existing facilities to the extent such compliance is
readily achievable. The final rule extends the compliance date for applying the barrier removal
requirements for accessible means of entry for pools, by adding paragraph (g)(5), which states
the following: “The application of this requirement to facilities built before March 15, 2012, for
accessible means of entry for swimming pools, wading pools, and spas as set forth in sections
242 and 1009 of the 2010 Standards shall not apply until January 31, 2013.”
The final rule also modifies the Appendix to § 36.304(d) to reflect the extension of the
compliance date.
7 As discussed earlier, the Department issued a Final Rule extending the date for compliance with sections 242 and
1009 of the 2010 Standards as they relate to existing pools (pools built as of March 15, 2012), until May 21, 2012.
See 77 FR at 16163. However, the regulatory text was not revised.
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Regulatory Certifications
Administrative Procedure Act
The Department finds good cause to make this regulation effective without a 30-day
delay in the effective date, pursuant to 5 U.S.C. 553(d), as it relieves a restriction by extending
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 existing swimming pools, wading pools, and spas, from May 21,
2012, until January 31, 2013.
Executive Order 13563 and Executive Order 12866—Regulatory Planning and Review
This regulation has been drafted and reviewed in accordance with Executive Order
13563, “Improving Regulation and Regulatory Review,” and Executive Order 12866,
“Regulatory Planning and Review” section 1(b), The Principles of Regulation. The Department
of Justice has determined that this rule is a “significant regulatory action” under Executive Order
12866, section 3(f), 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
20
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 extends
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 existing swimming pools, wading pools, and spas. The extension
provides 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 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 804. 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,
21
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.
List of Subjects for 28 CFR Parts 35 and 36
Administrative practice and procedure, Buildings and facilities, Civil rights,
Communications, Individuals with disabilities, Reporting and recordkeeping requirements, State
and local governments, Business and industry.
By the authority vested in me as Attorney General by law, including 28 U.S.C. 509 and
510, 5 U.S.C. 301, and sections 204 and 306 of the Americans with Disabilities Act of 1990,
Public Law 101B336 (42 U.S.C. 12134 and 12186), chapter I of title 28 of the Code of Federal
Regulations is amended as follows:
PART 35––NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
1. The authority citation for Part 35 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12134.
2. In § 35.150, paragraph (b)(4) is added to read as follows:
§ 35.150 Existing facilities.
* * * * *
(b) * * *
(4) Swimming pools, wading pools, and spas. The requirements set forth in sections
242 and 1009 of the 2010 Standards shall not apply until January 31, 2013, if a public entity
22
chooses to make structural changes to existing swimming pools, wading pools, or spas built
before March 15, 2012, for the sole purpose of complying with the program accessibility
requirements set forth in this section.
* * * * *
PART 36––NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PUBLIC
ACCOMMODATIONS AND COMMERCIAL FACILITIES
3. The authority citation for part 36 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).
4. Amend § 36.304 as follows:
a. Revise the Appendix to §36.304(d), and
b. Add paragraph (g)(5), to read as follows:
§ 36.304 Removal of barriers.
* * * * *
(d) * * *
Appendix to § 36.304(d)
Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
Date Requirement Applicable
Standards
Before March
15, 2012
Elements that do not comply with the requirements for those
elements in the 1991 Standards must be modified to the
extent readily achievable.
Note: Noncomplying newly constructed and altered elements
may also be subject to the requirements of § 36.406(a)(5).
1991 Standards
or 2010
Standards
On or after
March 15,
2012
Elements that do not comply with the requirements for those
elements in the 1991 Standards or that do not comply with
the supplemental requirements (i.e., elements for which there
are neither technical nor scoping specifications in the 1991
Standards), must be modified to the extent readily
achievable. There is an exception for existing pools, wading
2010 Standards
23
pools, and spas built before March 15, 2012 [See §
36.304(g)(5)].
Note: Noncomplying newly constructed and altered elements
may also be subject to the requirements of § 36.406(a)(5).
On or after
January 31,
2013
For existing pools, wading pools, and spas built before
March 15, 2012, elements that do not comply with the
supplemental requirements for entry to pools, wading pools,
and spas must be modified to the extent readily achievable
[See § 36.304(g)(5)].
Sections 242
and 1009 of the
2010 Standards
Elements not
altered after
March 15,
2012
Elements that comply with the requirements for those
elements in the 1991 Standards do not need to be modified. Safe Harbor
* * * * *
(g) * * *
(5) With respect to facilities built before March 15, 2012, the requirements in this section
for accessible means of entry for swimming pools, wading pools, and spas, as set forth in
sections 242 and 1009 of the 2010 Standards, shall not apply until January 31, 2013.
* * * * *
May 17, 2012__________________________
Date
________________________________
James M. Cole
Acting Attorney General
[FR Doc. 2012-12365 Filed 05/17/2012 at 4:15 pm; Publication Date: 05/21/2012]