NSBA Files ADA Comments

Aug 20, 2008

NSBA filed comments August 14 in regard to a rule, proposed by the U.S. Department of Justice (DOJ), which would update, clarify, and rewrite the Americans with Disabilities Act’s (ADA) existing regulations on physical access for disabled people. While generally supportive of the small-business “safe harbors” outlined in the proposed rule, NSBA expressed concerns with some of the specifics of the safe harbors' requested additional protective measures and increased clarification.

For the first time, the proposed rule would provide a “specific annual monetary ‘cost cap’” which would allow small businesses to meet their obligations under the proposed rule if, in the prior year, they spent at least 1 percent of their gross revenue to remove barriers. Although NSBA welcomed this effort to provide small businesses with some degree of certainty regarding their ADA compliance, it strongly argued for a less onerous requirement, arguing that, “At a minimum, the safe harbor should be based on net revenue and the department should make sure that it is clear that this one percent is a ceiling and not a floor.” NSBA also urged the department to allow small businesses to “roll-over” their barrier-removal expenditures as well.

In keeping with its long-standing regulatory reform advocacy efforts, NSBA urged DOJ—and the entire federal regulatory apparatus—to consider the indirect costs of the proposed rule in the course of its Small Business Regulatory Enforcement Fairness Act, Regulatory Flexibility Act, and Executive Order review process. NSBA has long argued that the continued failure of federal agencies to consider the indirect impacts of proposed regulations is the largest loophole in the federal regulatory framework.

NSBA also called for increased flexibility for small businesses and a greater timeframe within which to become compliant. The proposed rule would become effective six months from publication.

Finally, NSBA requested a full and complete Small Business Compliance Guide, explaining, among other things, what kinds of records will be necessary to successfully demonstrate that a small firm has spent its requisite one percent and what barrier-removal activities satisfy the one percent requirement.

For more information on the proposed rule, click here.

To view NSBA’s comments click here.