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

Subpart F-Certification of State Laws or Local Building Codes (Section-by-Section Analysis)

Subpart F contains procedures implementing section 308(b)(1)(A)(ii) of the ADA, which provides that, on the application of a state or local jurisdiction, the Attorney General may certify that a state or local building code or similar ordinance meets or exceeds the minimum accessibility requirements of the Act.  In enforcement proceedings, this certification will constitute rebuttable evidence that the law or code meets or exceeds the ADA's requirements.  In its ANPRM, the Department proposed changes that would streamline the process for public entities seeking certification.

In response to the comments received, the Department proposes three changes in Subpart F.  First, the Department proposes to delete § 36.603, which establishes the obligations of a submitting authority that is seeking certification of its code.  Due to the proposed deletion of §36.603, §§ 36.604 through 36.608 are renumbered, and § 36.603 in the proposed rule is modified to indicate that the Assistant Attorney General for the Civil Rights Division (Assistant Attorney General) shall make a preliminary determination of equivalency after "receipt and review of all information relevant to a request filed by a submitting official for certification of a code."  Second, the Department proposes that the requirement in § 36.605 (proposed § 36.604) (i.e., if the Assistant Attorney General makes a preliminary determination of equivalency, he or she shall hold an informal hearing in Washington, D.C.) be changed to a requirement that the hearing be held in the state or local jurisdiction charged with administration and enforcement of the code.  Third, the Department proposes adding language to § 36.607 (proposed § 36.606) to explain the effect of the proposed standards on the codes of state or local jurisdictions that were determined in the past to meet or exceed the 1991 Standards.  Once the proposed standards take effect, certifications issued under the 1991 Standards would not have any future effect, and states and local jurisdictions with codes certified under the 1991 Standards would need to reapply for certification under the proposed standards once adopted.  The Department will make every effort to give these requests priority in the review process.  With regard to elements of existing buildings and facilities constructed in compliance with a code when a certification of equivalency was in effect, the proposed rule would require that in any enforcement action this would be treated as rebuttable evidence of compliance with the Act's standards then in effect, which may implicate the barrier removal obligations of existing facilities and the "safe harbor" approach.

Many commenters, including business organizations, a professional association, disability rights groups, and individuals with disabilities, urged that the Department take steps overall to streamline the certification process--including the initial request for certification process--and make it less time consuming and easier to "navigate" for state and local jurisdictions.  In response to these comments, the Department has deleted the current language in § 36.603, which established the obligations of a submitting authority seeking certification of its code. The Department anticipates that in place of § 36.603, it will issue regulatory guidance in conjunction with the publication of the final rule that will provide more streamlined submission requirements and greater flexibility in the submission process.

The Department believes that with the adoption of the proposed standards, the certification  process will take significantly less time to complete and will be a more straightforward process.  In addition, it will be easier for jurisdictions to identify inconsistencies with the ADA in advance of requesting certification, thereby facilitating the certification review process.  The Department anticipates these results because of the extensive efforts made by the Access Board, working in conjunction with model code organizations, to harmonize the 2004 ADAAG with the accessibility provisions of the model codes, which form the basis of many state codes.

The Department also supports the views of commenters who stressed the importance of continued harmonization efforts by the Access Board, in addition to the benefits of providing more technical guidance regarding the consistency of model codes with the ADA's requirements.  In that regard, the Department expects to make available, in conjunction with its publication of  the proposed standards, information indicating differences between the 1991 Standards and the proposed standards, and the model code of the International Code Council and other model codes.

Many commenters, including a state enforcement agency, business organizations, and individuals with disabilities, urged the Department to eliminate the requirement that an informal hearing be held in Washington, D.C., after issuance of a preliminary determination of equivalency, and to add a requirement that the hearing be held within the affected jurisdiction, since it would provide better opportunities for interested parties to attend and participate.   Consistent with these comments, the Department has renumbered § 36.605 as § 36.604, and has proposed a new requirement: If the Assistant Attorney General makes a preliminary determination of equivalency, a hearing will be held in the state or local jurisdiction charged with administration and enforcement of the code.

Two commenters, a professional association and a model code organization, urged the Department to add to the process for certifying state and local codes a procedure for determining ADA-compliant design and construction alternatives or equivalent facilitation, or alternatively, to adopt a separate mechanism for such determinations modeled after a state "barrier free" design board.  One of these commenters also expressed frustration that local building code officials in jurisdictions with certified codes lacked the authority to issue binding interpretations of ADA compliance and suggested the transfer of such authority in conjunction with a certification determination.

The Department has considered these proposals, but notes that the approaches suggested are not consistent with or permissible under the statutory scheme established by the ADA.  Under the ADA, certification of state and local codes serves, to some extent, to mitigate the absence of a federal mechanism for reviewing nationally all architectural plans and inspecting all covered buildings under construction to ensure compliance with the ADA.  In this regard, certification operates as a bridge between the obligation to comply with the 1991 Standards in new construction and alterations, and the administrative schemes of state and local governments that regulate the design and construction process.  By ensuring consistency between state or local codes and federal accessibility standards, certification has the additional benefit of streamlining the "regulatory process," thereby making it easier for those in the design and construction industry to satisfy both state and federal requirements.

Although certification has the potential to increase compliance with the ADA, this result, however desirable, is not guaranteed.  The ADA contemplated that there could be enforcement actions brought even in states with certified codes, and provided some protection in litigation to builders who adhered to the provisions of the code certified to be ADA-equivalent, without resorting to waivers or variances. The certified code, however, remains within the authority of the adopting state or local jurisdiction to interpret and enforce:  certification does not transform a state's building code into federal law.  Nor can certification alone authorize state and local building code officials implementing a certified code to do more than they are authorized to do under state or local law, and these officials cannot acquire authority through certification to render binding interpretations of federal law.  Therefore, the Department, while understanding the interest in obtaining greater assurance of compliance with the ADA through the interpretation and enforcement of a certified code by local code officials, declines to amend the regulation to reach what are purely state and local processes of code enforcement and administration or to attempt to confer on local officials authority not granted to them under the ADA.

The Department also declines to propose modifications to the regulation to require, as one individual commenter suggested, that the receipt of federal funds be made contingent upon a state or local government's willingness to bring its building code into compliance with the ADA and, ostensibly, obtain certification.  The ADA establishes certification as a voluntary process; altering the statutory scheme is beyond the Department's authority.

A comment received from a firm representing several business organizations questioned whether the current certification process could ever provide states with certified codes the opportunity to keep current with changes in model codes because of inflexibility in either the federal rulemaking process or the certification process itself.  The commenter also pointed out that there are a number of states with codes that follow the current "guidelines" but have not received certification.  All of these circumstances require that "the certification process . . . start over under a new process."  The Department shares the commenter's concern regarding the importance of states with certified codes to update and keep their code certifications current.  In that regard, the Department has undertaken significant outreach to remind states of the need to request review from the Department for changes or amendments to a certified code. The Department also has written to states that have not sought code certification to encourage them to do so.  However, certification is a voluntary process, and the Department cannot require that states with certified codes submit amendments to a certified code any more than it can require the initial code certification.  The Department will continue to remind states with certified codes that the protection in litigation available through compliance with a certified code does not extend to uncertified code amendments.

The Department requested comment in its ANPRM on what impact the proposed standards should have on the status of accessibility requirements that were previously determined to have met or exceeded the 1991 Standards.  A number of commenters, including business groups, retail associations, hotel chains, associations of amusement parks, and a national chamber of commerce, urged the Department to allow each jurisdiction with a certified accessibility code to retain its certification after the adoption of the proposed standards under "safe harbor" provisions.  Many of the same commenters urged the Department to provide facilities constructed in accordance with currently certified accessibility codes meaningful protection from litigation.

Other commenters expressed a different view concerning the impact the proposed standards should have on currently certified codes.  A state enforcement agency urged the Department to allow each jurisdiction with a certified accessibility code to retain its certification only if the relevant jurisdiction could show that its accessibility code meets the proposed standards.  An organization representing people with disabilities urged the Department to require each jurisdiction with a certified accessibility code to amend its accessibility code to meet the proposed standards thirty days after they are adopted.  Another commenter, an individual with a disability, urged the Department to allow each jurisdiction with a certified accessibility code to retain its certification for a period of five years so that the relevant jurisdiction could amend its accessibility code to meet the proposed standards once adopted.

Two commenters, an architectural firm and an organization of disability access professionals, suggested that the Department implement a re-certification process to: (1) Expedite those jurisdictions now certified; and (2) allow those jurisdictions to retain their certifications while amending their accessibility codes to meet the proposed standards.  While the Department understands the substantial commitment of time and effort expended by states that have obtained certification of their codes, the Department anticipates requiring certification of equivalency for the accessibility requirements for construction and alteration of title III facilities on the basis of the proposed standards once they take effect.  Thus, states with codes certified under the 1991 Standards will need to conform their codes to the proposed standards and obtain certification for the revised code. Any other approach would place the Department in the untenable position of the appearance of sanctioning the continued use of codes in certain parts of the country that are based upon outdated federal standards, while requiring compliance with the proposed standards in the rest of the country.  With regard to facilities constructed in compliance with a certified code prior to the proposed standards, and during the period when a certification of equivalency was in effect, the Department is considering an approach that may merge with the basic safe harbor discussed in § 36.304 with respect to existing facilities constructed in compliance with the 1991 Standards.  So, for example, if the Department adopts a safe harbor provision for all elements in existing facilities constructed in compliance with the 1991 Standards, then existing facilities in states with certified codes would be eligible for a safe harbor if they were constructed in compliance with an ADA-certified code.  In this scenario, compliance with the certified code would be treated as evidence of compliance with the 1991 Standards for purposes of determining the application of the safe harbor provisions.  Similarly, the Department believes that builders who constructed in compliance with a certified code should retain the protections in litigation that certification conferred, but only with regard to the ADA Standards in effect at the time.  Therefore, in an enforcement action involving elements of existing facilities constructed in compliance with a certified code, compliance with the certified code would continue to constitute rebuttable evidence of compliance with the ADA Standards then in effect, which could be relevant to a number of issues in the future such as barrier removal and good faith on the part of builders or business owners.  Builders of newly constructed or altered facilities, however, would only receive protection in litigation if they constructed in compliance with a code certified as equivalent to the proposed standards.

The Department has amended § 36.607 (proposed § 36.606) that explains the effect of the proposed standards on existing certifications of equivalency issued under the 1991 Standards.

In addition, the Department has considered proposals that the Department "fast-track" a request for re-certification and give greater priority to states seeking re-certification for their codes.  The Department plans to facilitate the efforts of states with codes certified under the 1991 Standards to obtain certification under the proposed standards.  After publication of the proposed standards, but before their effective date, the Department will concentrate its efforts on assisting states with certified codes to identify the changes needed to conform their existing codes to the proposed standards.  Priority in the review process will be given to states with certified codes interested in obtaining re-certification pursuant to the proposed standards.  In addition, the Department will consider approaches internally that could result in a more efficient process for satisfying the procedural requirements for issuance of preliminary determinations, such as consolidating the Federal Register notices for the comment periods of two or more states if determinations are issued in close proximity to one another, and scheduling informal hearings in a manner that maximizes the ability of the Department's staff to conduct them within a relatively short time period.

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.