28 CFR Part 35 Nondiscrimination on the Basis of Disability in State and Local Government Services (2010 ADA Title II Regulations with amendments issued through Aug. 2016)

Executive Order 13132

Executive Order 13132, 64 FR 43255, 3 CFR, 2000 Comp., p. 206, requires executive branch agencies to consider whether a rule will have federalism implications. That is, the rulemaking agency must determine whether the rule is likely to have substantial direct effects on State and local governments, a substantial direct effect on the relationship between the Federal Government and the States and localities, or a substantial direct effect on the distribution of power and responsibilities among the different levels of government. If an agency believes that a rule is likely to have federalism implications, it must consult with State and local elected officials about how to minimize or eliminate the effects.

Title II of the ADA covers State and local government programs, services, and activities and, therefore, clearly has some federalism implications. State and local governments have been subject to the ADA since 1991, and the majority have also been required to comply with the requirements of section 504. Hence, the ADA and the title II regulation are not novel for State and local governments. In its adoption of the 2010 Standards, the Department was mindful of its obligation to meet the objectives of the ADA while also minimizing conflicts between State law and Federal interests.

The 2010 Standards address and minimize federalism concerns. As a member of the Access Board, the Department was privy to substantial feedback from State and local governments throughout the development of the Board's 2004 guidelines. Before those guidelines were finalized as the 2004 ADA/ABA Guidelines, they addressed and minimized federalism concerns expressed by State and local governments during the development process. Because the Department adopted ADA Chapter 1, ADA Chapter 2, and Chapters 3 through 10 of the 2004 ADA/ABA Guidelines as part of the 2010 Standards, the steps taken in the 2004 ADA/ABA Guidelines to address federalism concerns are reflected in the 2010 Standards.

The Department also solicited and received input from public entities in the September 2004 ANPRM and the June 2008 NPRM. Through the ANPRM and NPRM processes, the Department solicited comments from elected State and local officials and their representative national organizations about the potential federalism implications. The Department received comments addressing whether the ANPRM and NPRM directly affected State and local governments, the relationship between the Federal Government and the States, and the distribution of power and responsibilities among the various levels of government. This rule preempts State laws affecting entities subject to the ADA only to the extent that those laws conflict with the requirements of the ADA, as set forth in the rule.

Title III of the ADA covers public accommodations and commercial facilities. These facilities are generally subject to regulation by different levels of government, including Federal, State, and local governments. The ADA and the Department's implementing regulations set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of State and local laws, particularly building codes. The Department's implementing regulations address federalism concerns and mitigate federalism implications, particularly the provisions that streamline the administrative process for State and local governments seeking ADA code certification under title III.