28 CFR Part 36 Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities NPRM: Preamble (2008 Title III NPRM Preamble)

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

Under the ADA, a facility is initially classified as one of three types:  (1) An existing facility; (2) an altered facility; or (3) a newly designed and constructed facility.  In the current regulation, title III defines new construction at § 36.401(a) and alterations at § 36.402.  In contrast, the term "existing facility" is not defined, although it is used in the statute and 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 facility."  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.