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

Need for Rulemaking

This section discusses the Congressional findings in the Americans with Disabilities Act that establish the need for accessibility guidelines, the Access Board’s current accessibility guidelines, and why the Access Board is proposing to issue accessibility guidelines for pedestrian facilities in the public right-of-way.

Congressional Findings of Discrimination

The Americans with Disabilities Act was enacted in 1990 by overwhelming bipartisan majorities in the House of Representatives (377 – 28) and in the Senate (91 – 6).¹⁰  Congress compiled an extensive record of the discrimination experienced by individuals with disabilities in critical areas such as employment, public accommodations, state and local government services, and transportation. Congress found that “despite some improvements such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. 12101 (a) (2). Among the forms of discrimination that Congress found to be a continuing problem are “the discriminatory effects of architectural, transportation, and communication barriers.” 42 U.S.C. 12101 (a) (5). Congress found that “the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.” 42 U.S.C. 12101 (a) (9). Congress declared that “the Nation’s proper goals regarding individuals with disabilities are to ensure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals.” 42 U.S.C. 12101 (a) (8).

The purpose of the Americans with Disabilities Act is “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities” and “to provide clear, strong, and consistent, enforceable standards addressing discrimination against individuals with disabilities.” 42 U.S.C. 12101 (b) (1) and (2). Congress directed the Access Board to supplement the accessibility guidelines developed earlier for the Architectural Barriers Act to include “additional requirements, consistent with this Act, to ensure that buildings, facilities, rail passenger cars, and vehicles are accessible in terms of architecture and design, transportation, and communication, to individuals with disabilities.” 42 U.S.C. 12204 (b).

¹⁰101 Cong. Rec. H4629 and 4630 (July 12, 1990); 101 Cong. Rec. S9695 (July 13, 1990).

Current Guidelines Developed Primarily for Buildings and Facilities on Sites

The Access Board’s current accessibility guidelines were issued in 2004 and are known as the Americans with Disabilities Act and Architectural Barriers Act Accessibility Guidelines (hereinafter referred to as “2004 ADA and ABA Accessibility Guidelines”).¹¹  69 FR 44083 (July 23, 2004). The 2004 ADA and ABA Accessibility Guidelines revised and updated the Americans with Disabilities Act Accessibility Guidelines, which were issued by the Access Board in 1991 (hereinafter referred to as “1991 ADAAG”). 56 FR 35408 (July 26, 1991). The requirements in the 1991 ADAAG and 2004 ADA and ABA Accessibility Guidelines were developed primarily for buildings and facilities on sites.¹² Some of the requirements can be readily applied to pedestrian facilities in the public right-of-way. However, other requirements need to be adapted for pedestrian facilities in the public right-of-way.

¹¹The 2004 ADA and ABA Accessibility Guidelines are codified in 36 CFR part 1191 and consist of six appendices:

· Appendix A is the Table of Contents to the guidelines;

· Appendix B contains ADA Chapters 1 and 2, which include application and scoping requirements for the design, construction, and alteration of facilities covered by the Americans with Disabilities Act;

· Appendix C contains ABA Chapters 1 and 2, which include application and scoping requirements for the design, construction, and alteration of facilities covered by the Architectural Barriers Act;

· Appendix D contains Chapters 3 through 10, which include common technical requirements for the design, construction, and alteration of facilities covered by the Americans with Disabilities Act or the Architectural Barriers Act;

· Appendix E contains the index of terms and list of figures included in the guidelines; and

· Appendix F contains additions and modifications to the guidelines issued by the Department of Transportation.

The DOJ 2010 Standards and the Department of Transportation standards for transportation facilities used in the provision of transportation services covered by the transportation parts of Title II of the ADA and facilities covered by Section 504 adopt Appendices B and D, with additions and modifications. The General Services Administration standards for facilities covered by the Architectural Barriers Act adopt Appendices C and D, without additions and modifications.

¹²The term “site” is defined in the 1991 ADAAG (see 3.5) and 2004 ADA and ABA Accessibility Guidelines (see 106.5 and F106.5) as a “parcel of land bounded by a property line or a designated portion of a public right-of-way.”

Proposed Guidelines Developed Specifically for Pedestrian Facilities in the Public Right-of-Way

The proposed guidelines are developed specifically for pedestrian facilities in the public right-of-way and address conditions and constraints that exist in the public right-of-way. As discussed below under the Major Issues, the requirements in the proposed guidelines make allowances for typical roadway geometry and permit flexibility in alterations to existing facilities where existing physical constraints make it impractical to fully comply with new construction requirements. The proposed guidelines also include requirements for elements and facilities that exist only in the public right-of-way such as pedestrian signals and roundabouts.