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

Impacts on State and Local Governments

When the proposed guidelines are adopted, with or without additions and modifications, as accessibility standards by other federal agencies in the regulations implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act, the accessibility standards will apply to units of state and local government that construct streets and highways.¹⁸  For ease of reference, these state and local governmental units are referred to as “state and local transportation departments” in this preamble but may go by different names (e.g., public works departments, or highway or streets departments) in their respective jurisdictions. State and local transportation departments may be required to comply with three accessibility standards. For example, a state or local transportation department that finances the design, construction, or alteration of a pedestrian facility in the public right-of- way with a federal grant or loan from the Department of Transportation would be required to comply with the accessibility standards issued by the Department of Justice in regulations implementing Title II of the Americans with Disabilities Act, the accessibility standards issued by the Department of Transportation in regulations implementing Section 504, and the accessibility standards issued by the General Services Administration in regulations implementing the Architectural Barriers Act. All three accessibility standards would be basically uniform because they adopt the proposed guidelines, but may vary to the extent that Department of Justice, Department of Transportation, and General Services Administration include additions or modifications to the proposed guidelines in their accessibility standards.

The Access Board prepared a regulatory assessment of the potential costs and benefits of the proposed guidelines. The regulatory assessment is available in the regulatory docket at http://www.regulations.gov and on the Access Board website at: http://www.access-board.gov/prowac/ index.htm. The proposed guidelines are compared to a baseline to assess their potential costs and benefits. The baseline is how state and local transportation departments would design and construct pedestrian facilities in the public right-of-way in the absence of the proposed guidelines. All state transportation departments maintain design manuals and standard drawings for improvements in the public right-of-way.¹⁹  Most local transportation department also maintain design manuals and standard drawings for improvements in the public right-of-way that are consistent with the design manuals and standard drawings maintained by their state transportation departments. State and local transportation departments use publications issued by the American Association of State and Highway Transportation Officials (AASHTO) in their design manuals and standard drawings, including the “Policy on Geometric Design of Highways and Streets” (2004) (commonly referred to as the “AASHTO Green Book”) and the “Guide for the Planning, Design, and Operation of Pedestrian Facilities” (2004) which incorporate accessibility in the design of sidewalks and other pedestrian facilities.²⁰  The Federal Highway Administration as part of its stewardship and oversight responsibilities has also worked with state transportation departments to incorporate accessibility in their design manuals and standards drawings. The Federal Highway Administration has issued guidance that 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 “are to be used to the extent feasible” for the design of pedestrian facilities in the public right-of-way until new accessibility standards are adopted for these facilities.²¹  The Federal Highway Administration has also issued guidance that the 2005 draft of the proposed guidelines for pedestrian facilities in the public right-of-way “are the currently recommended best practices, and can be considered the state of the practice that could be followed for areas not fully addressed” in the existing accessibility standards.²²

In the absence of the proposed guidelines, the regulatory assessment assumes that state and local transportation departments will use the revised accessibility standards in the Department of Justice regulations implementing Title II of the Americans with Disabilities Act (hereinafter referred to as “DOJ 2010 Standards”) to the extent feasible when designing, constructing, or altering pedestrian facilities in the public right-of-way, consistent with the guidance issued by the Federal Highway Administration, as well as other applicable standards and industry practices.²³  An analysis of the proposed guidelines compared to the DOJ 2010 Standards, other applicable standards, and industry practices is included in the appendix to the regulatory assessment. The analysis consists of three tables.

¹⁸Private entities that design, construct, or alter places of public accommodation or commercial facilities on sites are required to comply with accessibility standards included in regulations issued by the Department of Justice to implement Title III of the Americans with Disabilities Act. See 28 CFR 36.401 through 36.406. State or local laws may require sites with frontage on the public right-of-way or frontage that will revert to the public right-of-way to make frontage improvements in accordance with state or local standards which contain accessibility requirements that are similar to the proposed guidelines.

¹⁹Links to the design manuals and standard drawings maintained by state transportation departments are available on the Federal Highway Administration website at: http://www.fhwa.dot.gov/programadmin/ statemanuals.cfm and http://www.fhwa.dot.gov/programadmin/statestandards.cfm.

²⁰The AASHTO “Policy on Geometric Design of Highways and Streets” and “Guide for the Planning, Design, and Operation of Pedestrian Facilities” incorporate accessibility in the design of sidewalks, including minimum clear width, passing spaces, grade, cross slope, protruding objects, and surface treatments; curb ramps, including detectable warning surfaces; pedestrian overpasses and underpasses; and transit stops and transit shelters.

²¹See Federal Highway Administration, Office of Program Administration, “Pedestrians and Accessible Design” at: http://www.fhwa.dot.gov/programadmin/pedestrians.cfm. When the guidance was issued, the applicable 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 adopted the 1991 ADAAG and permitted the Uniform Federal Accessibility Standards to be used.

²²See Federal Highway Administration, “Public Rights-of-Way Access Advisory” (January 23, 2006) at: http://www.fhwa.dot.gov/environment/bikeped/prwaa.htm.

²³See footnote 5 regarding the DOJ 2010 standards and effective dates.

Table 1. Proposed Guidelines Contain Same Requirements as in DOJ 2010 Standards

Table 1 analyzes requirements in the proposed guidelines that are the same as requirements in the DOJ 2010 Standards.²⁴  The requirements in the proposed guidelines in Table 1 will have no impacts on state and local transportation departments compared to the requirements in the DOJ 2010 Standards because the requirements are the same.

²⁴The requirements analyzed in Table 1 include: drinking fountains, public toilet facilities, tables, counters, passenger loading zones, ramps, stairways, handrails, doors, doorways, gates, operable parts, clear spaces, knee and toe clearance, and reach ranges.

Table 2. Proposed Guidelines Adapt Requirements in DOJ 2010 Standards

Table 2 analyzes requirements in the proposed guidelines that adapt requirements in the DOJ 2010 Standards to allow for conditions and constraints in the public right-of-way.²⁵  The requirements in the proposed guidelines in Table 2 do not establish greater requirements for accessibility in the public right-of-way than the requirements in the DOJ 2010 Standards and industry practices. Some of the requirements in the proposed guidelines in Table 2 establish lesser requirements for accessibility in the public right-of-way than the requirements in the DOJ 2010 Standards. For example, where the pedestrian access route in a sidewalk is contained within the street or highway right-of-way, the grade of the pedestrian access route is permitted to equal the general grade established for the adjacent street or highway to allow for typical roadway geometry instead of the running slope requirements for accessible routes on sites. The requirements in the proposed guidelines in Table 2 will have no impacts on state and local transportation departments compared to the requirements in the DOJ 2010 Standards and industry practices, except for the 2 percent maximum cross slope requirement for pedestrian access routes contained within pedestrian street crossings with stop or yield control where vehicles slow or stop before proceeding through the intersection (see R204.3 and R302.6). This requirement will have more than minimal impacts on the design and construction of new tabled intersections in hilly urban areas that contain pedestrian street crossings with stop or yield control. The impacts are analyzed in the regulatory assessment and discussed below under Cross Slope (R302.6) in the Section-by-Section Analysis.

²⁵The requirements analyzed in Table 2 include: sidewalks and other pedestrian circulation paths, pedestrian street crossings, pedestrian overpasses and underpasses, pedestrian at-grade rail crossings, curb ramps and blended transitions, protruding objects, transit stops and transit shelters used by buses and light rail vehicles, on-street parking, and escalators. The requirements for transit stops and transit shelters used by buses and light vehicles are compared to the accessibility standards in the Department of Transportation regulations implementing the public transportation parts of Title II of the Americans with Disabilities Act.

Table 3. Proposed Guidelines Contain Requirements Not in DOJ 2010 Standards

Table 3 analyzes requirements in the proposed guidelines for which there are no corresponding requirements in the DOJ 2010 Standards.²⁶  The requirements in the proposed guidelines in Table 3 are compared to other applicable accessibility standards and the 2009 edition of Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD). Where the requirements in the proposed guidelines in Table 3 are the same as the requirements in other applicable accessibility standards or the MUTCD, the requirements will have no impacts on state and local transportation departments. Where a requirement in the proposed guidelines in Table 3 differs from a corresponding requirement in other applicable accessibility standards or there is no corresponding requirement in other applicable accessibility standards, the analysis used the following factors to identify whether the requirement will have more than minimal impacts on state and local transportation departments:

• Whether the requirement can be easily incorporated into the design of the element or facility?

• Whether the requirement adds features to the element or facility?

• Whether the requirement reduces space needed for other purposes?

• What are the additional costs due to the requirement compared to the total design and construction costs for the element or facility?

A requirement that can be easily incorporated into the design of an element or facility, and does not add features to the element or facility or reduce space needed for other purposes will have minimal impacts on state and local transportation departments. A requirement that cannot be easily incorporated into the design of an element or facility, adds features to the element or facility, or reduces space needed for other purposes and that results in additional costs compared to the total design and construction costs of the element or facility which are not negligible (i.e., are worth considering) will have more than minimal impacts on state and local transportation departments.

The analysis identified three requirements in the proposed guidelines in Table 3 that will have more than minimal impacts on state and local transportation departments:

• Detectable warning surfaces on curb ramps and blended transitions at pedestrian street crossings (see R208.1 and R305);

• Accessible pedestrian signals and pedestrian pushbuttons (see R209); and

• Pedestrian activated signals at roundabout intersections with multi-lane pedestrian street crossings (see R206 and R306.3.2).

The impacts of these requirements are analyzed in the regulatory assessment and are discussed below under the relevant requirements in the Section-by-Section Analysis.

Question 1. Comments are requested on whether other requirements in the proposed guidelines will have more than minimal impacts on state and local transportation departments, in addition to the requirements identified in Tables 2 and 3. Comments should:

• Identify the requirement by section number or other information that identifies the specific requirement;

• Explain why the requirement will have more than minimal impacts using the factors described above or other appropriate factors; and

• Provide estimates of the additional costs due to the requirement compared to the total design and construction costs for the element or facility.

Question 2. Comments are requested on whether the requirements in the proposed guidelines have any unintended positive or negative consequences.

Question 3. Comments are requested on alternative regulatory approaches for achieving the objectives of the Americans with Disabilities Act, Section 504, and Architectural Barriers Act to eliminate the discriminatory effects of architectural, transportation, and communication barriers in the design and construction of pedestrian facilities in the public right-of-way.

²⁶The requirements analyzed in Table 3 include: alternate pedestrian access routes, pedestrian signal phase timing, accessible pedestrian signals and pedestrian pushbuttons, pedestrian street crossings at roundabouts, detectable warning surfaces on curb ramps and blended transitions at pedestrian street crossings, detectable warning surfaces on pedestrian at-grade rail crossings not located within a street or highway, pedestrian signs, and benches.