28 CFR Part 35 Title II Notice of Proposed Rulemaking (NPRM) - Preamble (published 2008)

"Existing Facility" (Section-by-Section Analysis)

Under the ADA, a facility may be one or more of three types at different points in time:  (1) an existing facility, (2) an altered facility, or (3) a newly designed and constructed facility.  In the current regulation, title II defines new construction at § 35.151(a) and alterations at § 35.151(b).  In contrast, the term "existing facility" is not defined although it is used in the statute and in the regulations for titles II and III.  42 U.S.C. 12182(b)(2)(A)(iv); 28 CFR 35.150.

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.  Of course, if the construction of a facility at issue begins after the triggering dates for the new construction standards, then the facility is subject to the new construction standards, and if it is altered, it is subject to the alterations standards.