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

Regulatory Process Matters

Executive Orders 12866 and 13563

The Office of Management and Budget has reviewed this proposed rule pursuant to Executive Orders 12866 and 13563.⁴⁷  The Access Board prepared a regulatory assessment of the potential costs and benefits of the proposed rule. The regulatory assessment is available on the Access Board website at: http://www.access-board.gov/prowac/index.htm, and is also available in the regulatory docket at http://www.regulations.gov. The information in the regulatory assessment is discussed in the preamble under Impacts on State and Local Governments and under the relevant requirements in the Section-by-Section Analysis. The information in the regulatory assessment is also summarized in the tables below, As indicated in the tables below, the regulatory assessment does not include estimates of the total annual costs for two of the requirements in the proposed guidelines that will have more than minimal impacts because information is not available to estimate the costs. Questions are included in the preamble seeking additional information to assist the Board to estimate the total annual costs of these two requirements and to refine the cost estimates for the other requirements in the proposed guidelines. Consequently, the Access Board has not determined whether the proposed guidelines are an economically significant regulatory action.⁴⁸  The Access Board will analyze the information received in response to the questions in the preamble. When the final guidelines are issued, the Access Board will revise the regulatory assessment and determine whether the guidelines are an economically significant regulatory action.

⁴⁷Executive Orders 12866 and 13563 establish and reaffirm principles of regulation that direct federal agencies among other things to: “(1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public.” Executive Order 13563, section 1 (b).

⁴⁸A regulatory action is economically significant if it is anticipated to “[h]ave an annual effect on the economy of $100 million or more” or to “adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government communities.” Executive Order 12866, section 2 (f) (1).

Baseline

All state transportation departments and most local transportation departments maintain design manuals and standard drawings for improvements in the public right-of-way. The local transportation department design manuals and standard drawings are generally consistent with their state transportation department design manuals and standard drawings. 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.⁴⁹ 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.

In the absence of the proposed guidelines, the regulatory assessment assumes that state and local transportation departments will use the DOJ 2010 Standards in the Department of Justice regulations implementing Title II of the Americans with Disabilities Act 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. 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 identified four requirements in the proposed guidelines that will have more than minimal impacts on state and local transportation departments. The factors used to identify whether the requirements in the proposed guidelines will have more than minimal impacts are discussed in the regulatory assessment and in the preamble under Impacts on State and Local Governments. The four requirements in the proposed guidelines that will have more than minimal impacts on state and local transportation departments are summarized in the table below, along with a description of the governmental units affected by proposed requirements and questions in the preamble to the proposed guidelines that seek additional information on the governmental units affected.

The Access Board entered into an interagency agreement with the Volpe National Transportation Systems Center (Volpe Center) to gather data and prepare cost estimates for the regulatory assessment. The cost estimates prepared by the Volpe Center are summarized in the table below, along with questions in the preamble to the proposed guidelines that seek additional information to refine the cost estimates.

⁴⁹See footnote 20 for additional information on the AASHTO publications and accessibility.

Benefits

The proposed guidelines will benefit pedestrians with disabilities. The U.S. Census Bureau reports that 54.4 million Americans, about one in five U.S. residents, reported some level of disability in 2005.⁵⁰  The number of individuals with disabilities is almost equal to the combined total population of California and Florida. The U.S. Census Bureau provides this breakdown of the population of people aged 15 and older:

• 27.4 million (11.9 percent) had difficulty with ambulatory activities of the lower body;

• 22.6 million people (9.8 percent) had difficulty walking a quarter of a mile;

• 21.8 million (9.4 percent) had difficulty climbing a flight of stairs;

• 10.2 million (4.4 percent) used a cane, crutches, or walker to assist with mobility;

• 3.3 million (1.4 percent) used a wheelchair or other wheeled mobility device; and

• 7.8 million (3 percent) had difficulty seeing words or letters in ordinary newspaper print, including 1.8 million who are completely unable to see.

Executive Order 13563 states that to the extent permitted by law federal agencies must “propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify)” and that “where appropriate and permitted by law, each agency may consider and (discuss qualitatively) values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts.” The proposed guidelines promote important societal values that are difficult or impossible to quantify. As discussed above under the Need for Rulemaking, when enacting the Americans with Disabilities Act, Congress found “the discriminatory effects of architectural, transportation, and communication barriers” to be a continuing problem that “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) (5) and (9). Congress declared that “the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency.” 42 U.S.C. 12101 (a) (8). The proposed guidelines promote the goals declared by Congress by eliminating the discriminatory effects of architectural, transportation, and communication barriers in the design and construction of pedestrian facilities in the public right-of-way. The proposed guidelines are also important to achieving the benefits of the other parts of the Americans with Disabilities Act. As the House Report for the Americans with Disabilities Act stated, “[t]he employment, transportation, and public accommodation sections . . . would be meaningless if people who use wheelchairs were not afforded the opportunity to travel on and between the streets.” H.R. 485, 101st Cong., 2d Sess. 84 (1990).

Question 23. Comments are requested on whether the proposed guidelines have other quantitative or qualitative benefits in addition to those discussed above.

⁵⁰“Americans with Disabilities: 2005” (2008) available on the web at: http://www.census.gov/prod/2008pubs/p70‒117.pdf.

Regulatory Flexibility Act: Initial Regulatory Flexibility Analysis

The impacts of the proposed guidelines on small governmental jurisdictions with a population of less than 50,000 are discussed below. This information is required by the Regulatory Flexibility Act (5 U.S.C. §603).

Reasons for issuing proposed accessibility guidelines

The Access Board’s current accessibility guidelines, the 2004 ADA and ABA Accessibility Guidelines, were developed primarily for buildings and facilities on sites. Some of the requirements in the 2004 ADA and ABA Accessibility Guidelines can be readily applied to pedestrian facilities in the public right-of-way, but other requirements need to be adapted 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.

Objectives of, and legal basis for, proposed accessibility guidelines

The Access Board is required to issue accessibility guidelines by the Americans with Disabilities Act (42 U.S.C. §12204) and Section 502 of the Rehabilitation Act (29 U.S.C. §792) to ensure that newly constructed and altered facilities are readily accessible to and usable by pedestrians with disabilities.

Small governmental jurisdictions affected by proposed accessibility guidelines

The number of small governmental jurisdictions with a population less than 50,000 affected by the proposed guidelines is shown in the table below.

Source: US Census Bureau 2002 Census of Governments available at:
http://www.census.gov/prod/2003pubs/gc021x1.pdf.

Almost 70 percent of municipal governments (13,038) and more than 75 percent of towns and townships (12,331) have a population of less than 2,500. Many of these small governmental jurisdictions are located in rural areas, which generally do not construct pedestrian transportation networks (e.g., sidewalks, pedestrian street crossings, and pedestrian signals).

Compliance requirements

The proposed accessibility guidelines address the design, construction, and alteration of pedestrian facilities in the public right-of-way, including sidewalks, pedestrian street crossings, pedestrian overpasses and underpasses, curb ramps and blended transitions at pedestrian street crossings, pedestrian signals, street furniture (i.e., drinking fountains, public toilet facilities, tables, counters, and benches), pedestrian signs, transit stops and transit shelters for buses and light rail vehicles, on-street parking that is marked or metered, and passenger loading zones. The Section-by-Section Analysis of the preamble describes the proposed accessibility guidelines. Compliance with the proposed accessibility guidelines is not mandatory until they are adopted, without or without additions and modifications, as accessibility standards by other federal agencies. There are no reporting or recordkeeping requirements.

Other federal rules

The Department of Justice, Department of Transportation, and General Services Administration are responsible for issuing accessibility standards that are consistent with the accessibility guidelines issued by the Access Board and are expected to conduct rulemaking to adopt the proposed guidelines, with or without additions and modifications, as accessibility standards in regulations implementing Title II of the Americans with Disabilities Act (28 CFR part 36 and 49 CFR part 37), Section 504 of the Rehabilitation Act (49 CFR part 27), and the Architectural Barriers Act (41 CFR part 102). Additional information on these laws and regulations is provided under the Statutory and Regulatory Background in the preamble to the proposed guidelines.

Significant alternatives which minimize any significant economic impacts on small entities

The regulatory assessment analyzes the following four requirements in the proposed guidelines that will have more than minimal impacts on state and local transportation departments:

• Detectable warning surfaces required on newly constructed and altered curb ramps and blended transitions at pedestrian street crossings (see R208.1 and R305). Detectable warning surfaces consist of small truncated domes that are detectable underfoot. Where curb ramps or blended transitions are provided at pedestrian street crossings, detectable warning surfaces indicate the boundary between a pedestrian route and a vehicular route for pedestrians who are blind or have low vision in place of the missing curb.

• Accessible pedestrian signals and pedestrian pushbuttons required when pedestrian signals newly installed or replaced at signalized intersections (see R209). Accessible pedestrian signals and pedestrian pushbuttons communicate the information about the WALK and DON’T WALK intervals at signalized intersections in non-visual formats (i.e., audible tones and vibrotactile surfaces) to pedestrians who are blind or have low vision.

• Maximum cross slope of 2 percent required on pedestrian access routes, including within pedestrian street crossings with yield or stop control. Cross slope is the slope perpendicular to the direction of pedestrian travel. Cross slope impedes travel by pedestrians who use wheeled mobility devices since energy must be expended to counteract the perpendicular force of the cross slope. The 2 percent maximum cross slope required on pedestrian access routes has more than minimal impacts on the construction of new tabled intersections in hilly urban areas that contain pedestrian street crossings with yield or stop control where vehicles slow or stop before proceeding through the intersection.

• Pedestrian activated signals at roundabouts with multi-lane pedestrian street crossings. A roundabout is a circular intersection with yield control at entry, which permits a vehicle on the circulatory roadway to proceed, and with deflection of the approaching vehicle counter-clockwise around a central island. Pedestrian activated signals are required at roundabouts with multi-lane pedestrian street crossings to facilitate crossing by pedestrians who are blind or have low vision. Small governmental jurisdictions with a population less than 50,000 are not likely to construct roundabouts with multi-lane pedestrian street crossings and will not be affected by this requirement.

There are no significant alternatives that will minimize any significant impacts of these requirements on small governmental jurisdictions and achieve the objectives of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the 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.

Executive Order 13132: Federalism

The proposed rule adheres to the fundamental federalism principles and policy making criteria in Executive Order 13132. The proposed rule is issued under the authority of the Americans with Disabilities Act, civil rights legislation that was enacted by Congress pursuant to its authority to enforce the Fourteenth Amendment to the U.S. Constitution and to regulate commerce. The Americans with Disabilities Act was enacted “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. §12101 (b) (1). The Americans with Disabilities Act recognizes the authority of State and local governments to enact and enforce laws that “provide for greater or equal protection for the rights of individuals with disabilities than are afforded by this chapter.” 42 U.S.C. §12201 (b). The proposed rule is based on the recommendations of a federal advisory committee which included representatives of state and local governments. The Access Board made drafts of the proposed rule available for public review and comment. State and local governments provided comments on the drafts of the proposed rule.

Unfunded Mandates Reform Act

The Unfunded Mandates Reform Act does not apply to proposed or final rules that enforce constitutional rights of individuals or enforce statutory rights that prohibit discrimination on the basis of race, color, sex, national origin, age, handicap, or disability. Since the proposed rule is issued under the Americans with Disabilities Act, which prohibits discrimination on the basis of disability, an assessment of the rule’s effect on State, local, and tribal governments, and the private sector is not required by the Unfunded Mandates Reform Act.