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2010 Guidance and Section-by-Section Analysis 1991 Preamble and Section-by-Section Analysis Pool Extension Final Rule Guidance and Section-by Section Analysis ADA Amendments Act Final Rule Guidance and Section-by-Section Analysis DEPARTMENT OF JUSTICE 28 CFR Part 35 [CRT Docket No. 3180– 2010] RIN 1190–AA46 Nondiscrimination on the Basis of Disability in State and Local Government Services AGENCY: Department of Justice, Civil Rights Division. SUMMARY: This final rule revises the regulation of the Department of Justice (Department) that implements title II of the Americans with Disabilities Act (ADA), relating to nondiscrimination on the basis of disability in State and local government services. Elkin, Attorney Advisor, Disability Rights Section, Civil Rights Division, U. Department of Justice, at (202) 307–0663 (voice or TTY). Information may also be obtained from the Department's toll-free ADA Information Line at (800) 514–0301 (voice) or (800) 514–0383 (TTY). The Board consists of 13 members appointed by the President from among the general public, the majority of whom must be individuals with disabilities, and the heads of 12 Federal departments and agencies specified by statute, including the heads of the Department of Justice and the Department of Transportation (DOT). 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 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 Office of Management and Budget (OMB) Circular AB4, sections D (Analytical Approaches) and E (Identifying and Measuring Benefits and Costs) (Sept.The Department is issuing this final rule in order to adopt enforceable accessibility standards under the ADA that are consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board (Access Board), and to update or amend certain provisions of the title II regulation so that they comport with the Department's legal and practical experiences in enforcing the ADA since 1991. This rule is also available in an accessible format on the ADA Home Page at Originally, the Access Board was established to develop and maintain accessibility guidelines for facilities designed, constructed, altered, or leased with Federal dollars under the Architectural Barriers Act of 1968 (ABA). 17, 2003), available at circulars/a004/a-4(last visited June 24, 2010). Title II, which this rule addresses, applies to State and local government entities, and, in subtitle A, protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities. 794, to all activities of State and local governments regardless of whether these entities receive Federal financial assistance. The Department is also amending its title III regulation, which prohibits discrimination on the basis of disability by public accommodations and in commercial facilities, concurrently with the publication of this rule in this issue of the Federal Register. In support of this effort, the Department is amending its regulation implementing title II and is adopting standards consistent with ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines, naming them the 2010 ADA Standards for Accessible Design.Concurrently with the publication of this final rule for title II, the Department is publishing a final rule amending its ADA title III regulation, which covers nondiscrimination on the basis of disability by public accommodations and in commercial facilities. You may obtain copies of this rule in large print or on computer disk by calling the ADA Information Line listed above. While underscoring that the Department, as a member of the Access Board, already had 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 Access Board was established by section 502 of the Rehabilitation Act of 1973. The extent to which the 2004 ADAAG is used with respect to the program access requirement in title II (as well as with respect to the barrier removal requirement applicable to existing facilities under title III) is within the sole discretion of the Department. By the end of the extended comment period, the Department had received more than 900 comments covering a broad range of issues.The NPRMs addressed the issues raised in the public's comments to the ANPRM and sought additional comment, generally and in specific areas, such as the Department's adoption of the 2004 ADAAG, the Department's regulatory assessment of the costs and benefits of the rule, its updates and amendments of certain provisions of the existing title II and III regulations, and areas that were in need of additional clarification or specificity.A public hearing was held on July 15, 2008, in Washington, D. Forty-five individuals testified in person or by phone. By the end of the 60- day comment period, the Department had received 4,435 comments addressing a broad range of issues many of which were common to the title II and title III NPRMs, from representatives of businesses and industries, State and local government agencies, disability advocacy organizations, and private individuals, many of which addressed issues common to both NPRMs.
The Department also published an NPRM on that day covering title III (73 FR 34508).
On July 26, 1991, the Department issued rules implementing title II and title III, which are codified at 28 CFR part 35 (title II) and part 36 (title III).
The ANPRM dealt with the Department's responsibilities under both title II and title III. The Department extended the comment deadline by four months at the public's request. Many of the commenters responded to questions posed specifically by the Department, including questions regarding the Department's application of the 2004 ADAAG once adopted by the Department and the Department's regulatory assessment of the costs and benefits of particular elements.
The Department notes that this rulemaking was unusual in that much of the proposed regulatory text and many of the questions asked across titles II and III were the same.
Consequently, many of the commenters did not provide separate sets of documents for the proposed title II and title III rules, and in many instances, the commenters did not specify which title was being commented upon.
ADA Chapter 1 and ADA Chapter 2 of the 2004 ADA/ABA Guidelines provided scoping requirements for facilities subject to the ADA; ‘‘scoping'' is a term used in the 2004 ADA/ABA Guidelines to describe requirements that prescribe which elements and spaces— and, in some cases, how many—must comply with the technical specifications.