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

General comments regarding safe harbor. (Section-by-Section Analysis)

The Department received numerous comments on this option in the ANPRM.  Generally, covered entities favored a safe harbor, while entities representing individuals with disabilities did not.  Some disability rights groups, however, favored the safe harbor, arguing that the marginal improvements in accessibility were insufficient to ask entities to retrofit elements that work for most individuals with disabilities.  One disability rights group commented that proposing new standards without a safe harbor would penalize compliant businesses, who would have to pay for retrofits twice, and reward scofflaws, who would have avoided the expense of complying with the current law.  Some businesses opposed the application of a safe harbor and, instead, encouraged the government to consider other avenues for reducing costs, like providing tax relief for businesses.  A tax credit is already available to small businesses (as defined in the tax code), and larger businesses can receive a tax deduction.  26 U.S.C. 44.

Several disability groups and state advocacy centers felt that there was no need for a safe harbor because the statute already controls costs by limiting required actions to what is "readily achievable."  28 CFR 36.304.  The statutory defense maximizes accessibility by requiring case-specific, individualized determinations that excuse strict compliance when it is too difficult or costly.  The safe harbor, by contrast, would exempt even some actions that are readily achievable. Similarly, disability rights groups objected to a blanket rule when the facilities at issue vary so greatly, arguing that large companies should be able to do more to provide accessibility than smaller businesses.

A broad cross section of industries and advocates for industry favored the safe harbor approach organizations representing retail establishments, hotels and lodging, and recreational facilities.  These entities raised issues related to cost, reliance on federal law, and fair play.  Industry advocates were concerned not only with the cost of making the actual changes, but also with the cost of assessing their facilities for compliance with the incremental changes, arguing that the money would be better spent on other, higher priority accessibility measures.

As noted earlier in the general discussion of the safe harbor proposals, some commenters proposed that the Department treat the proposed standards like most building codes when they are updated and apply them prospectively only.  Under the International Building Code, for example, an existing structure is generally grandfathered provided that the building meets a minimum level of safety.  See International Code Council, International Bldg. Code, Commentary, section I.206 (2003); International Existing Bldg. Code, Commentary, section 101.4 (2003). 

While the Department agrees generally with the goal of aiming for consistency between the ADA Standards and building codes--indeed, great effort in the development of the 2004 ADAAG was undertaken to create consistency with building codes where possible--there are critical differences between the 2004 ADAAG and building codes.  The ADA is a civil rights statute, not a building and safety code.  Its primary goal is to ensure access and equality for individuals with disabilities.  It is also a relatively new law, and much of the built environment remains inaccessible.  Nevertheless, the Department is asking for public input on a more limited version of this approach that would exempt owners and operators of places of public accommodation from compliance with the supplemental requirements for play areas and recreation facilities.