36 CFR Part 1190, Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way: Notice of Proposed Rulemaking (NPRM)

Governmental Units Affected (Section-by-Section Analysis)

State and local transportation departments are divided into four groups for the purpose of evaluating the impacts of the requirement in the proposed guidelines for detectable warning surfaces on curb ramps:

• Group 1 consists of state and local transportation departments that use UFAS for curb ramps as currently permitted by the Department of Justice and Department of Transportation regulations implementing Title II of the Americans with Disabilities Act and Section 504. UFAS did not contain a requirement for detectable warning surfaces on curb ramps. The Access Board is not aware of any state or local transportation departments that use UFAS. The Department of Justice regulations do not permit the use of UFAS on or after March 15, 2012. See 28 CFR 35.151 (c) (3). Thus, Group 1 will cease to exist as of March 15, 2012, and any state and local transportation departments currently in Group 1 will fall into one of the other groups.

Question 4. The Access Board seeks information on whether any state and local transportation departments currently use UFAS for curb ramps in the public right-of-way.

• Group 2 consists of state and local transportation departments that receive federal financial assistance directly or indirectly from the Department of Transportation. State and local transportation departments in Group 2 are required to comply with the accessibility standards in the Department of Justice regulations implementing Title II of the Americans with Disabilities Act and the Department of Transportation regulations implementing Section 504. Where the requirements in the accessibility standards in the Department of Justice and Department of Transportation regulations differ, the more stringent requirement must be used. Excluding any state and local transportation departments in Group 1, state and local transportation departments in Group 2 must comply with the requirement for detectable warning surfaces on curb ramps in the Department of Transportation regulations because it is the more stringent requirement. All state transportation departments and most local transportation departments are in Group 2 and specify detectable warning surfaces on curb ramps in their standard drawings. The requirement in the proposed guidelines for detectable warning surfaces on curb ramps will not have any impacts on state and local transportation departments in Group 2.

• Group 3 consists of local transportation departments that do not receive federal financial assistance directly or indirectly from the Department of Transportation. Local transportation departments in Group 3 are required to comply only with the accessibility standards in the Department of Justice regulations implementing Title II of the Americans with Disabilities Act. Excluding any local transportation departments in Group 1, local transportation departments in Group 3:

  • a) Used the DOJ 1991 Standards, which include the 1991 ADAAG and contain a requirement for detectable warning surfaces on curb ramps, before September 15, 2010. See 28 CFR 35.151 (c) (1).
  • b) Are permitted to use the DOJ 1991 Standards, which include the 1991 ADAAG and contain a requirement for detectable warning surfaces on curb ramps, or the DOJ 2010 Standards, which include the 2004 ADA and ABA Accessibility Guidelines and do not contain a requirement for detectable warnings on curb ramps, between September 15, 2010 and March 14, 2012. See 28 CFR 35.151 (c) (2).
  • c) Must use the DOJ 2010 Standards, which include the 2004 ADA and ABA Accessibility Guidelines and do not contain a requirement for detectable warnings on curb ramps, on or after March 15, 2012. See 28 CFR 35.151 (c) (3).

Thus, local transportation departments in Group 3 were required to provide detectable warning surfaces on curb ramps before September 15, 2010; may or may not be required to provide detectable warning surfaces on curb ramps between September 15, 2010 and March 14, 2012 depending on the accessibility standard they use (DOJ 1991 Standards or DOJ 2010 Standards); and are not required to provide detectable warning surfaces on curb ramps on or after March 15, 2012 pending the future adoption of accessibility standards for pedestrian facilities in the public right-of-way by the Department of Justice.

Question 5. The Access Board seeks information on whether local transportation departments in Group 3 will continue or discontinue providing detectable warning surfaces on curb ramps in the public right-of-way pending the future adoption of accessibility standards for pedestrian facilities in the public right-of-way by the Department of Justice.

• Group 4 consists of state and local transportation departments that do not comply with accessibility standards for curb ramps in the public right-of-way. The Department of Justice and Federal Highway Administration have provided guidance on accessibility standards that apply to curb ramps in the public right-of-way, including the requirement for detectable warning surfaces.³¹  Despite the guidance provided by the Department of Justice and the Federal Highway Administration on the accessibility standards that apply to curb ramps in the public right-of-way, there may be state and local transportation departments that do not comply with the standards.

Question 6. Comments are requested on whether the future adoption of accessibility standards for pedestrian facilities in the public right of way by the Department of Justice and Department of Transportation in regulations implementing Title II of the Americans with Disabilities Act and Section 504 will have a positive or negative effect, or no effect on the compliance rates of state and local transportation departments, particularly with respect to providing detectable warning surfaces on curb ramps.

Question 7. The Access Board seeks information on the number of curb ramps that are constructed or altered on an annual basis in the public right-of-way by state and local transportation departments.

³¹See Department of Justice, “ADA Best Practices Tool Kit for State and Local Governments, Curb Ramps and Pedestrian Crossings” (May 7, 2006) at: http://www.ada.gov/pcatoolkit/toolkitmain.htm; and Federal Highway Administration, “Information on Detectable Warnings” (May 6, 2002) at: http://www.fhwa.dot.gov/environment/bikeped/dwm.htm .