28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

Effect on the certification process of using more than one regulatory scheme at the state or local level to establish accessibility requirements for title III facilities with new design requirements in the proposed standards. (Section-by-Section Analysis)

The proposed standards will include requirements for elements and spaces that are not addressed specifically in the 1991 Standards, including elements within recreational facilities and play areas such as swimming pools, spas, miniature golf courses, components in play areas, amusement rides, boating facilities, and fishing piers or platforms.  Many of these will be constructed as components of buildings and facilities regulated by state and local governments through their building codes.  In other instances, they may not occur in conjunction with a building or facility that is traditionally regulated through the building code.  The Department understands that state and local governments may differ in their choices regarding how to incorporate new accessibility requirements for recreational facilities and play areas.  The opportunity to seek certification is not limited to jurisdictions that incorporate accessibility requirements into building codes and enforce them through a building code authority.  Jurisdictions can adopt legally enforceable accessibility requirements through a variety of regulatory schemes, including the building code, and lodge oversight authority in a governmental entity other than a code authority, such as a human relations commission, a department of public safety, the office of a local fire marshal, or an office that issues business licenses.

The Department is considering what impact the administration of accessibility requirements through more than one regulatory scheme under the authority of more than one state or local agency should have on the certification review process.  The Department contemplates that when a jurisdiction uses more than one regulatory scheme to incorporate its accessibility requirements for title III facilities, all of the requirements would be the subject of a request for certification, even if there are "joint" submitting officials representing the respective agencies with enforcement responsibility.