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Federal Register
/Vol. 73, No. 117/Tuesday, June 17, 2008/Proposed Rules
publication of the 2004 ADAAG is theculmination of a long-term effort tofacilitate ADA compliance andenforcement by eliminating, to theextent possible, inconsistencies amongfederal accessibility requirements and between federal accessibilityrequirements and state and local building codes. In support of this effort,the Department is announcing itsintention to adopt standards consistentwith Parts I and III of the 2004 ADAAGas the ADA Standards for AccessibleDesign. To facilitate this process, theDepartment is seeking public commenton the issues discussed in this notice.
The ADA and Department of JusticeRegulations
The ADA broadly protects the rightsof individuals with disabilities inemployment, access to state and localgovernment services, places of publicaccommodation, transportation, andother important areas of American lifeand, in addition, requires newlydesigned and constructed or alteredstate and local government facilities,public accommodations, andcommercial facilities to be readilyaccessible to and usable by individualswith disabilities. 42 U.S.C. 12101
et seq.
Under the ADA, the Department isresponsible for issuing regulations toimplement title II and title III of the Act,except to the extent that transportationproviders subject to title II or title III areregulated by the Department of Transportation.
Id.
at 12134.The Department is also proposingamendments to its title III regulation,which prohibits discrimination on the basis of disability in publicaccommodations and commercialfacilities, published concurrently withthe publication of this NPRM, in thisissue of the
Federal Register
.Title II applies to state and localgovernment entities, and, in Subtitle A,protects qualified individuals withdisabilities from discrimination on the basis of disability in services, programs,and activities provided by state andlocal government entities. Title IIextends the prohibition of discrimination established by section504 of the Rehabilitation Act of 1973, asamended, 29 U.S.C. 794 (section 504), toall activities of state and localgovernments regardless of whether theseentities receive federal financialassistance. 42 U.S.C. 12131
–
65.On July 26, 1991, the Departmentissued its final rules implementing titleII and title III, which are codified at 28CFR part 35 (title II) and part 36 (titleIII). Appendix A of the title IIIregulation, at 28 CFR part 36, containsthe current 1991 Standards, which were based upon the version of ADAAGpublished by the Access Board on thesame date. Under the current regulation,title II entities are required to complyeither with the 1991 Standards or withthe Uniform Federal AccessibilityStandards (UFAS), 41 CFR part 101
–
19.6, App. A
—
which many publicentities were accustomed to followingunder section 504
—
with respect tonewly constructed or altered facilities.
Relationship to Other Laws
The Department of Justice regulationimplementing title II, 28 CFR 35.103,provides:
(a)
Rule of interpretation
. Except asotherwise provided in this part, this partshall not be construed to apply a lesserstandard than the standards applied undertitle V of the Rehabilitation Act of 1973, 29U.S.C. 791
et seq.
, or the regulations issued by federal agencies pursuant to that title.(b)
Other laws
. This part does notinvalidate or limit the remedies, rights, andprocedures of any other federal, state or locallaws (including state common law) thatprovide greater or equal protection for therights of individuals with disabilities orindividuals associated with them.
Nothing in this proposed rule willalter this relationship. The Departmentrecognizes that public entities subject totitle II of the ADA may also be subjectto title I of the ADA, which prohibitsdiscrimination on the basis of disabilityin employment, section 504, whichprohibits discrimination on the basis of disability in the programs and activitiesof recipients of federal financialassistance, and other federal statutessuch as the Air Carrier Access Act, 49U.S.C. 41705, and the Fair Housing Act,42 U.S.C. 3601
et seq.
Compliance withthe Department
’
s regulations under theADA does not necessarily ensurecompliance with other federal statutes.Public entities that are subject both tothe Department
’
s regulations and toregulations published by other federalagencies must ensure that they complywith the requirements of bothregulations. If there is a direct conflict between the regulations, the regulationthat provides greater accessibility willprevail. When different statutes apply toentities that routinely interact, eachentity must follow the regulation thatspecifically applies to it. For example, apublic airport is a title II facility thathouses air carriers subject to the AirCarrier Access Act (ACAA). The publicairport operator would comply with thetitle II requirements, not with the ACAArequirements. Conversely, the air carrieris required to comply with the ACAA,not with the ADA.In addition, public entities (includingAMTRAK) that provide publictransportation services that are subjectto subtitle B of title II should bereminded that the Department
’
sregulation, at 28 CFR 35.102, providesthat
—
(a) Except as provided in paragraph (b) of this section, this part applies to all services,programs, and activities provided or madeavailable by public entities.(b) To the extent that public transportationservices, programs, and activities of publicentities are covered by subtitle B of title II of the ADA, 42 U.S.C. 12141, they are notsubject to the requirements of this part.
Nothing in this proposed rule altersthat provision. To the extent that thepublic transportation services,programs, and activities of publicentities are covered by subtitle B of titleII of the ADA, they are subject to theregulation of the Department of Transportation (DOT) at 49 CFR part 37and are not covered by this proposedrule. Matters not covered by subtitle Bare covered by this rule. In addition,activities not specifically addressed byDOT
’
s ADA regulation may be covered by DOT
’
s regulation implementingsection 504 for its federally assistedprograms and activities at 49 CFR part27. Like other programs of publicentities that are also recipients of federalfinancial assistance, those programswould be covered by both the section504 regulation and this part. Airportsoperated by public entities are notsubject to DOT
’
s ADA regulation, butthey are subject to subpart A of title IIand to this rule.
The Roles of the Access Board and theDepartment of Justice
The Access Board was established bysection 502 of the Rehabilitation Act of 1973, 29 U.S.C. 792. The Board consistsof thirteen public members appointed by the President, of whom the majoritymust be individuals with disabilities,and the heads of twelve federaldepartments and agencies specified bystatute, including the heads of theDepartment of Justice and theDepartment of Transportation.Originally, the Access Board wasestablished to develop and maintainaccessibility guidelines for federallyfunded facilities under the ArchitecturalBarriers Act of 1968 (ABA), 42 U.S.C.4151
et seq.
The passage of the ADAexpanded the Access Board
’
sresponsibilities. The ADA requires theAccess Board to
‘‘
issue minimumguidelines that shall supplement theexisting Minimum Guidelines andRequirements for Accessible Design forpurposes of subchapters II and III of thischapter *** to ensure that buildings,facilities, rail passenger cars, andvehicles are accessible, in terms of
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