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Chapter 9: Certification

Regulatory references: 28 CFR 36.601-36.608.

III-9.7000 Effect of certification.

Certification will only be effective concerning those features or elements that are both covered by the certified code and addressed by the Department's regulations.

ILLUSTRATION: The Department's standards currently do not include specific provisions concerning children's facilities. A private elementary school is built to the specifications of a code certified by the Department. Certification will not be effective for those features of the building especially designed to be used by children (e.g., children's restrooms, water fountains).

Will certification be effective only for the particular edition of the code that is certified? Yes. Amendments will not automatically be considered certified, and a submitting official will need to reapply for certification of the changed or additional provisions.

Will certification apply to the process by which a State or local code is administered or enforced? No. In other words, the Department will evaluate and certify only the code itself, not the process by which it is implemented. This is true even though the Department has certified a code with provisions concerning waivers, variances, or equivalent facilitation. Certification of a code with those provisions is not to be interpreted as an endorsement of actions taken pursuant to those provisions. The Department's certification of a code is effective only with respect to the standards in the code; it is not to be interpreted to apply to a State or local government's application of the code. For example, a local official's decision that a particular approach constitutes equivalent facilitation under a local code is not effective for ADA purposes.

Can a code that is consistent with ADAAG be certified if the local enforcement process allows deviations from ADAAG? Yes. The Department expects that many jurisdictions will allow slight variations from a particular code. ADAAG itself permits variations from its standards in certain limited circumstances. ADAAG includes in §2.2 a statement allowing departures from particular requirements where substantially equivalent or greater access and usability is provided. Several sections specifically allow for alternative methods of providing equivalent facilitation and, in some cases, provide examples.

What if a State or local official allows a facility to be constructed or altered in a manner that does not follow the technical or scoping provisions of the certified code? If an official either waives an accessible element or feature or allows a change that does not provide equivalent facilitation, the fact that the Department has certified the code itself will not constitute rebuttable evidence that the facility has been constructed or altered in accordance with the minimum accessibility requirements of the ADA.