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17 March 2005
Laurel W. Wright
Chief Accessibility Code Consultant
Jeffrey Kanner
Architect
Engineering Division
Office of State Fire Marshal
North Carolina Department of Insurance
322 Chapanoke Road
Raleigh, North Carolina 27603
Dear Ms. Wright and Mr. Kanner:
Thank you for submitting the amendments adopted in June 2004 to the North Carolina Accessibility Code (NCAC) for our review in support of your request for certification under title III of the Americans with Disabilities Act (ADA).
We are very pleased to inform you that, upon careful review of the NCAC, the Department of Justice has determined that the NCAC, as amended in June 2004, is substantially equivalent to the new construction and alterations requirements of title III of the ADA. This letter constitutes the Department's preliminary determination of equivalency pursuant to
42 U.S.C. § 12188(b)(1)(A)(ii) of the ADA and 28 C.F.R. § 36.604 of the Department’s implementing regulations.
We congratulate the North Carolina Department of Insurance for preparing a code that, we believe, will be a model for other states developing accessibility codes. We would also like to thank you for your cooperation and patience during the certification review process.
The Department's determination, if it becomes final, will formally certify that the NCAC meets or exceeds the new construction and alterations requirements of title III of the ADA. The effect of such certification will be to provide rebuttable evidence, in any ADA enforcement action, that a building constructed or altered in compliance with the certified code complies with the ADA.
Certification does not apply to buildings constructed by or for state or local governmental entities, which are subject to title II of the ADA. Nor does certification apply to accessibility requirements that are addressed by the NCAC, but are not addressed by the new construction and alterations requirements of title III of the ADA, including the ADA Standards for Accessible Design. In addition, while we are aware that the NCAC allows for the approval of waiver and exemption requests, we must point out that should state or local officials approve variances or waivers to ADA required minimum accessibility requirements, certification will not apply. Certification will also not apply if other North Carolina building codes provide an exemption from the ADA required minimum accessibility requirements. This would mean that in any ADA enforcement action, a builder who receives a variance, waiver, modification, or other exemption for any element of new construction or alterations from the requirements of the NCAC that are not more restrictive than the ADA, would not be in compliance with the ADA and would not be able to benefit from certification’s rebuttable evidence of ADA compliance with respect to that element. Finally, certification applies only to the version of the NCAC submitted to and reviewed by the Department, which is the 2002 North Carolina Accessibility Code with 2004 amendments (the 2002 NCAC consists of the 1999 edition of the NCAC with 2002 revisions, which comprised the submission made to the Department prior to the 2004 amendments). Subsequent amendments may be submitted to the Department for updated certification as appropriate. These limitations should be noted in any publication of the NCAC.
Procedurally, this notification letter constitutes an important step towards final certification of the NCAC. The next step in the process requires the publication of a notice in the Federal Register advising the public of our preliminary determination to certify the NCAC. The public will have 60 days to submit written comments. During the public comment period, the Department will hold an informal hearing in North Carolina on the preliminary determination. After considering the submitted comments and publishing another notice in the Federal Register, the Department will hold another informal hearing in Washington, D.C. After consideration of all of the comments and consultation with the Architectural and Transportation Barriers Compliance Board, the Department will issue its final determination and publish a notice thereof in the Federal Register. See 28 C.F.R. § 36.605. We will, of course, keep you informed of the progress of this process. If you have any questions about this process or about our preliminary determination, please contact Jonathan Hahm, an attorney in the Disability Rights Section, at (202) 616-5577.
Once again, congratulations on having created a code that we believe sets a fine example for other jurisdictions and that is most deserving of certification by the Department of Justice.
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Sincerely,
R. Alexander Acosta
Assistant Attorney General |
cc: Mr. Lawrence W. Roffee
U.S. Architectural and Transportation
Barriers Compliance Board
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