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

Executive Order 13132: Federalism

Executive Order 13132, "Federalism," 64 FR 43255 (Aug. 4, 1999), requires executive branch agencies to consider whether a proposed 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 proposed 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 regulations are not novel for state and local governments.  This proposed rule will preempt state laws affecting entities subject to the ADA only to the extent that those laws directly conflict with the statutory requirements of the ADA.  But the Department believes it is prudent to consult with public entities about the potential federalism implications of the proposed title II regulations.                      

In addition, the interaction of title II and title III has potentially significant federalism implications.  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 regulation set minimum civil rights protections for individuals with disabilities that in turn may affect the implementation of state and local laws, particularly building codes.  For these reasons, the Department has determined that this NPRM may have federalism implications and requires intergovernmental consultation in compliance with Executive Order 13132.

The Department intends to amend the regulation in a manner that meets the objectives of the ADA while also minimizing conflicts between state law and federal interests.  To that end, as a member of the Access Board, the Department has been privy to substantial feedback from state and local governments through the development of the 2004 ADAAG.  In addition, the Department solicited and received input from public entities in the September 2004 ANPRM.  Some elements of the proposed rule reflect the Department's work to mitigate federalism implications, particularly the provisions that streamline the administrative process for state and local governments seeking ADA code certification under title III.

The Department is now soliciting comments from elected state and local officials and their representative national organizations through this NPRM.  The Department seeks comment from all interested parties, but especially state and local elected officials, about the potential federalism implications of the proposed rule.  The Department will welcome comments on whether the proposed rule may have direct effects on state and local governments, the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.