36 CFR Parts 1190 and 1191 ADA and ABA Accessibility Guidelines - Preamble (Discussion of Comments and Changes)

Existing Facilities

Commenters expressed concern about how changes to these guidelines would impact existing facilities that were previously retrofitted under ADA requirements, such as those requiring barrier removal and program access. The ADA requires the removal of barriers in existing places of public accommodation where it is readily achievable. State and local government entities are required to provide access to programs, which may necessitate retrofit of existing facilities. Commenters expressed concern that further retrofit efforts would be triggered due to new requirements in the revised guidelines. Specifically, commenters asked whether elements that comply with the original ADAAG would need to be altered to meet the requirements of the updated guidelines under the obligations for barrier removal or program access.

The Board’s authority under the ADA only extends to the development and maintenance of accessibility guidelines for construction and planned alterations and additions. It does not have jurisdiction over requirements for existing facilities that are otherwise not being altered, except for certain types of transit stations (key stations and intercity rail stations). Under the ADA, regulations issued by the Department of Justice (DOJ) and the Department of Transportation (DOT) effectively govern requirements that apply to existing facilities. How, and to what extent, the Board’s guidelines are used for purposes of retrofit, including removal of barriers and provision of program access, is wholly within the purview of these departments. It is the Board’s understanding that the Department of Justice is aware of the concern outlined in comments and that the Department plans to address these concerns in its rulemaking to revise its ADA standards consistent with the Board’s final rule.