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

Safe harbor.

One of the most important issues the Department must address in proposing to adopt the 2004 ADAAG as its new ADA Standards for Accessible Design is the effect that the proposed standards will have on existing facilities under title II.  This issue was not addressed in the 2004 ADAAG because it is outside of the scope of the Access Board's authority under the ADA.

Under title II, program accessibility requires that state and local government agencies provide individuals with disabilities with access to their programs when "viewed in their entirety."  Title II does not require structural modifications in all circumstances in order to provide program access.  As a result of this flexibility, the Department believes that the program accessibility requirement as it is codified in the current regulation may appropriately mitigate any burdens on public entities without additional regulatory safeguards.  Nevertheless, in order to provide certainty and clarity, the Department is proposing a safe harbor for elements in existing facilities that are in compliance with either the 1991 Standards or the Uniform Federal Accessibility Standards (UFAS), 41 CFR part 101-19.6, App. A.  This proposal is discussed below in § 35.150(b)(2) of the section-by-section analysis.

The Department invites comment on whether public entities that operate existing facilities with play or recreation areas should be exempted from compliance with certain requirements in the 2004 ADAAG. Existing facilities would continue to be subject to accessibility requirements in existing law, but not specifically to the requirements in:  (1) The Access Board's supplemental guidelines on play areas, 65 FR 62498 (Oct. 18, 2000); and (2) the Access Board's supplemental guidelines on recreation facilities, 67 FR 56352 (Sept. 3, 2002).  Under this scenario, the 2004 ADAAG would apply only to new play areas and recreation facilities, and would not govern the accessibility of existing facilities as legal requirements.  Public entities that operate existing facilities with play or recreation areas, pursuant to the ADA's requirements to provide equal opportunity for individuals with disabilities, may still have the obligation to provide an accessible route to the playground, some accessible equipment, and an accessible surface for the play area or recreation facility.

Question 7:  Should the Department exempt public entities from specific compliance with the supplemental requirements for play areas and recreation facilities, and instead continue to determine accessibility in these facilities on a case-by-case basis under existing law? Please provide information on the effect of such a proposal on people with disabilities and public entities.