Definition of Existing Facility Should Be Clarified

The Department's enforcement of the ADA is premised on a broad understanding of “existing facilities.” The classifications of facilities under the ADA regulation are not static. Rather, a building that was newly designed and constructed at one time – and, therefore, subject to the accessibility standards in effect at the time – becomes an “existing facility” after it is completed. At some point in its life, it may also be considered “altered” and then again become “existing.” The added definition of “existing facility” in the proposed regulation clarifies that the term means exactly what it says: a facility in existence on any given date is an existing facility under the ADA. If a facility exists, it is an existing facility whether it was built in 1989, 1999, or 2009.

(Section 36.104 – Definitions, p.34519.) We urge the Department to make clear that all buildings remain subject to the new construction standards in effect at the time of their construction, that is, that a building built between January 26, 1993 and the effective date of the new regulations remains “new construction” for purposes of the 1991 Standards and that alterations occurring between January 26, 1992 and the effective date of the new regulations remain “alterations” for purposes of the 1991 Standards. In the absence of such clarification, we are concerned that building owners may attempt to assert that a building built in, say, 1997 is now an “existing facility” and that only readily achievable barrier removal – rather than full compliance with the 1991 Standards – is required.