28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

Relationship to Other Laws

The Department of Justice regulation implementing title II, 28 CFR § 35.103, provides:

(a) Rule of interpretation. Except as otherwise provided in this part, this part shall not be construed to apply a lesser standard than the standards applied under title V of the Rehabilitation Act of 1973, 29 U.S.C. 791 et seq., or the regulations issued by federal agencies pursuant to that title.

(b) Other laws. This part does not invalidate or limit the remedies, rights, and procedures of any other federal, state or local laws (including state common law) that provide greater or equal protection for the rights of individuals with disabilities or individuals associated with them.

Nothing in this proposed rule will alter this relationship. The Department recognizes that public entities subject to title II of the ADA may also be subject to title I of the ADA, which prohibits discrimination on the basis of disability in employment, section 504, which prohibits discrimination on the basis of disability in the programs and activities of recipients of federal financial assistance, and other federal statutes such as the Air Carrier Access Act, 49 U.S.C. 41705, and the Fair Housing Act, 42 U.S.C. 3601 et seq.  Compliance with the Department's regulations under the ADA does not necessarily ensure compliance with other federal statutes.  Public entities that are subject both to the Department's regulations and to regulations published by other federal agencies must ensure that they comply with the requirements of both regulations.  If there is a direct conflict between the regulations, the regulation that provides greater accessibility will prevail. When different statutes apply to entities that routinely interact, each entity must follow the regulation that specifically applies to it.  For example, a public airport is a title II facility that houses air carriers subject to the Air Carrier Access Act (ACAA).  The public airport operator would comply with the title II requirements, not with the ACAA requirements.  Conversely, the air carrier is required to comply with the ACAA, not with the ADA.

In addition, public entities (including AMTRAK) that provide public transportation services that are subject to subtitle B of title II should be reminded that the Department's regulation, at 28 CFR § 35.102, provides that -

(a) Except as provided in paragraph (b) of this section, this part applies to all services, programs, and activities provided or made available by public entities.

(b) To the extent that public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141, they are not subject to the requirements of this part.

Nothing in this proposed rule alters that provision.  To the extent that the public transportation services, programs, and activities of public entities are covered by subtitle B of title II of the ADA, they are subject to the regulation of the Department of Transportation (DOT) at 49 CFR part 37 and are not covered by this proposed rule.  Matters not covered by subtitle B are covered by this rule.  In addition, activities not specifically addressed by DOT's ADA regulation may be covered by DOT's regulation implementing section 504 for its federally assisted programs and activities at 49 CFR part 27.  Like other programs of public entities that are also recipients of federal financial assistance, those programs would be covered by both the section 504 regulation and this part.  Airports operated by public entities are not subject to DOT's ADA regulation, but they are subject to subpart A of title II and to this rule.