ADA 1991 vs. 2010 Standards: Which Date Trigger Applies

Whether a building’s new construction or alteration must follow the 1991 or 2010 ADA Standards depends on a single date trigger set by federal regulation, and that trigger is defined differently by title: 28 CFR 36.406 for title III public accommodations and commercial facilities, and 28 CFR 35.151 for title II state and local government facilities.

This original record-reading guide is a general reading aid, not cited evidence. It does not depict a source record; the article text and source links provide the facts.

Key points

• Title III (28 CFR 36.406(a)(3)): the 2010 Standards apply if the building-permit application was certified complete on or after March 15, 2012 — or, when no permit is required, if physical construction or alterations started on or after March 15, 2012.
• Title II (28 CFR 35.151(c)(3)): the 2010 Standards apply if physical construction or alterations commenced on or after March 15, 2012. There is no permit-certification trigger under title II — only the construction-start date matters.
• Title II has a transitional middle window: under 35.151(c)(2), for construction or alterations commencing on or after September 15, 2010 and before March 15, 2012, a project may comply with the 2010 Standards, UFAS, or the 1991 Standards (with one 1991 elevator-exemption provision excluded).
• Under title III, “start of physical construction or alterations” specifically excludes a ceremonial groundbreaking or the razing of structures before site preparation.

Title III permit-certification trigger

The controlling text of 28 CFR 36.406(a)(3) states:

“New construction and alterations subject to §§ 36.401 or 36.402 shall comply with the 2010 Standards if the date when the last application for a building permit or permit extension is certified to be complete by a State, county, or local government (or, in those jurisdictions where the government does not certify completion of applications, if the date when the last application for a building permit or permit extension is received by the State, county, or local government) is on or after March 15, 2012, or if no permit is required, if the start of physical construction or alterations occurs on or after March 15, 2012.” (28 CFR 36.406)

This means the relevant date under title III is not the date construction finishes, opens, or is inspected — it is the date the permit application was certified complete by the government body (or received, where certification isn’t practiced), or, only when no permit is required at all, the date physical construction or alterations actually begin.

The regulation is also explicit about what does not count as the start of construction:

“For the purposes of this section, ‘start of physical construction or alterations’ does not mean ceremonial groundbreaking or razing of structures prior to site preparation.” (28 CFR 36.406)

The current text of § 36.406 carries this codification history:

“[AG Order No. 3181-2010, 75 FR 56256, Sept. 15, 2010]” (28 CFR 36.406)

Title II trigger and middle window

Title II facilities — those operated by state and local governments — are governed by a differently worded trigger. Section 35.151(c)(3) states:

“If physical construction or alterations commence on or after March 15, 2012, then new construction and alterations subject to this section shall comply with the 2010 Standards.” (28 CFR 35.151)

Unlike title III, this text has no permit-certification branch at all — the sole date that matters under title II is when physical construction or alterations commence.

Title II also has a transitional middle window with a choice of standards. Section 35.151(c)(2) states:

“If physical construction or alterations commence on or after September 15, 2010 and before March 15, 2012, then new construction and alterations subject to this section may comply with one of the following: The 2010 Standards, UFAS, or the 1991 Standards except that the elevator exemption contained at section 4.1.3(5) and section 4.1.6(1)(k) of the 1991 Standards shall not apply.” (28 CFR 35.151)

The current text of § 35.151 carries this codification history:

“[56 FR 35716, July 26, 1991, as amended by Order No. 1694-93, 58 FR 17521, Apr. 5, 1993; AG Order No. 3180-2010, 75 FR 56180, Sept. 15, 2010; 76 FR 13285, Mar. 11, 2011]” (28 CFR 35.151)

Two ADA design standards

Both triggers point to a common pair of underlying standards: the two standards being triggered into or out of use are the Department of Justice’s own successive ADA design standards:

“The Department of Justice adopted the first ADA Standards for Accessible Design … on July 26, 1991, known as the ‘1991 ADA Standards’ and adopted revised ADA Standards on September 15, 2010, known as the ‘2010 ADA Standards’.” (ADA.gov)

March 15, 2012 is the date both title II (28 CFR 35.151(c)(3)) and title III (28 CFR 36.406(a)(3)) regulations use as the point after which the 2010 Standards become mandatory for new construction and alterations. Title II also sets September 15, 2010 as the start of a transitional window in which a project may use the 2010 Standards, UFAS, or the 1991 Standards, per 28 CFR 35.151(c)(2).

What this article does not answer

This article states only what the text of 28 CFR 36.406 and 28 CFR 35.151 says about which edition of the ADA Standards applies, based on a permit-certification or construction-start date.

It does not determine whether any specific building’s construction or alteration actually complied with whichever standard applied once the trigger date was identified. That is a separate factual and compliance question.

It also does not identify the record that would establish a particular building’s permit-certification or construction-start date, or explain how to obtain that record.

This article does not address any state or local building-code requirement.

Source links

• 28 CFR 36.406 — Title III ADA Standards Compliance Date (eCFR)
• 28 CFR 35.151 — Title II ADA Standards Compliance Date (eCFR)
• ADA.gov — ADA Standards for Accessible Design