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

Element-by-element safe harbor for public accommodations. (Section-by-Section Analysis)

The Department is proposing to amend § 36.304(d) in order to adopt a safe harbor for elements in existing facilities that comply with the 1991 Standards, or option I in the ANPRM.  This provision is proposed § 36.304(d)(2).  What is currently § 36.304(d)(2) in the regulation would be redesignated as § 36.304(d)(6).  Specifically, the new § 36.304(d)(2) codifies a safe harbor for all elements that are in compliance with the specific requirements--both the scoping and technical specifications--of the 1991 Standards.  Elements in existing facilities that are not altered after the effective date of this rule, and that comply with the 1991 Standards, are not required to be modified in order to comply with the proposed standards.

This safe harbor provision is not a blanket exemption for facilities.  Compliance with the 1991 Standards is determined on an element-by-element basis in each covered facility.  As noted, elements that the Access Board addressed for the first time in the supplemental guidelines (e.g., play area requirements introduced in the supplemental guidelines, etc.) would not be subject to the safe harbor.  Of course, this safe harbor would have no effect on noncompliant elements.  Barrier removal is an ongoing obligation.  To the extent that elements in existing facilities that impose barriers are not already in compliance with the 1991 Standards, public accommodations would be required to modify such elements to comply with the proposed standards.

The proposed safe harbor reflects the Department's determination that it would be an inefficient use of resources to require covered entities that have complied with the 1991 Standards to retrofit elements simply to comply with the proposed standards if the change provides only a minimal improvement in accessibility.  To a substantial degree, the barrier has already been removed.  In addition, covered entities would have a strong disincentive for voluntary compliance if, every time the applicable standards are revised, covered entities are required once again to modify elements simply to keep pace with new proposals.

The Department recognizes, however, that there are also considerations opposing this approach.  While the incremental benefit of the revisions may be minimal with respect to some elements, with respect to others the proposed standards may confer a significant benefit on some individuals with disabilities that would be unavailable--except of course when public accommodations and commercial facilities undergo alterations or new construction--if this option is adopted. Because there are valid arguments on both sides of this issue, the Department sought public comment on this issue in its ANPRM.