2022 California Standards for Accessible Design Guide (effective January 1, 2023)
Safe Harbors
When DOJ updated the ADA Regulations and adopted the 2004 ADAAG in 2010, it recognized that many business owners and government entities had already invested considerable time, effort and money to achieve compliance with 1991 ADAAG, and saw fit to include a Safe Harbor provision in the Appendix to §36.304(d) of the 2010 Title III ADA Regulations (28 CFR Part 36), noted in the following chart from that Appendix. The requirements for Title II, State and Local Government Facilities, are similar and may be found at 28 CFR Part 35 §35.150(b)(2)(i).
Appendix to §36.304(d) Compliance Dates and Applicable Standards for Barrier Removal and Safe Harbor
|
Date |
Requirement |
Applicable Standards |
|---|---|---|
|
Before March 15, 2012 |
Elements that do not comply with the requirements for those elements in the 1991 Standards must be modified to the extent readily achievable. Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5). |
|
|
On or after March 15, 2012 |
Elements that do not comply with the requirements for those elements in the 1991 Standards or that do not comply with the supplemental requirements (i.e., elements for which there are neither technical nor scoping specifications in the 1991 Standards), must be modified to the extent readily achievable. There is an exception for existing pools, wading pools, and spas built before March 15, 2012. [See § 36.304(g)(5)] Note: Noncomplying newly constructed and altered elements may also be subject to the requirements of § 36.406(a)(5). |
|
|
On or after January 31, 2013 |
For existing pools, wading pools, and spas built before March 15, 2012, elements that do not comply with the supplemental requirements for entry to pools, wading pools, and spas must be modified to the extent readily achievable. [See § 36.304(g)(5)] |
Sections 242 and 1009 of the 2010 Standards |
|
Elements not altered after March 15, 2012 |
Elements that comply with the requirements for those elements in the 1991 Standards do not need to be modified. |
Safe Harbor |
As indicated in the title of this table, the Safe Harbor provision applies only to barrier removal in existing facilities, not to new construction. New construction must comply with the 2010 ADA Standards, as of March 15, 2012.
The term "Safe Harbor" does not appear in CBC, but a similar provision is included in Exception 2 at Section 11B-202.4. The scope of this "Safe Harbor" provision is far more limited than that of 2010 ADA Standards, and it is important to note that, when the 2022 CBC became applicable, "the immediately preceding edition of the California Building Code" refers to the 2019 CBC.
As observed in the Background section of this Introduction, a Building Code changes constantly, so "the immediately preceding edition of the California Building Code" is subject to interpretation. ETA has consulted with DSA-AC on this matter, learning that their interpretation is that this refers to any version of the preceding edition. Guide users are cautioned that some Building Officials or other Authorities Having Jurisdiction may apply a different interpretation.
For consistency and clarity, ETA has chosen to use the term "Safe Harbor" in this Guide to refer to items that may qualify for CBC Section 11B-202.4, Exception 2. Using DSA-AC's interpretation of "the immediately preceding edition of the California Building Code," ETA has provided hyperlinks from the 2022 CBC requirement to the applicable "Safe Harbor" prescription from the preceding edition. These are identifiable in the text of this document as follows: [Safe Harbor Section or Subsection Number Hyperlink].
There are currently still some uncertainties about how to interpret and apply the Safe Harbor provisions. More information about Safe Harbor provisions may be found throughout Corada by performing a keyword search or by clicking here: Safe Harbor.
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