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

Statutory and Regulatory Background

Americans with Disabilities Act

The Americans with Disabilities Act (42 U.S.C. 12101 et seq.) is a federal civil rights law that prohibits discrimination against individuals with disabilities. Title II of the Americans with Disabilities Act covers state and local governments.² The Department of Justice is responsible for issuing regulations to implement Title II of the Americans with Disabilities Act, except for the public transportation parts.³ The regulations issued by the Department of Justice include accessibility standards for the design, construction, and alteration of facilities (other than facilities used in the provision of public transportation covered by regulations issued by the Department of Transportation).⁴ The Department of Justice’s accessibility standards adopt, with additions and modifications, the Access Board’s current guidelines, which are discussed below under the Need for Rulemaking.⁵ See 28 CFR 35.104 and 35.151.

The Department of Transportation is responsible for issuing regulations to implement the public transportation parts of Title II of the Americans with Disabilities Act.⁶ The regulations issued by the Department of Transportation include accessibility standards for the design, construction, and alteration of facilities used in the provision of public transportation covered by the public transportation parts of Title II of the Americans with Disabilities Act. The Department of Transportation’s accessibility standards adopt, with additions and modifications, the Access Board’s current guidelines, which are discussed below under the Need for Rulemaking. See 49 CFR 37.9 and Appendix A to 49 CFR part 37.

The Department of Justice is responsible for overall enforcement of Title II of the Americans with Disabilities Act. The Department of Justice has designated the Department of Transportation as the federal agency responsible for investigating complaints and conducting compliance reviews “relating to programs, services, and regulatory activities relating to transportation, including highways.” See 28 CFR 35.190 (b) (8).

²Other titles of the Americans with Disabilities Act cover employers (Title I), private entities that own, lease, or operate places of public accommodation and commercial facilities (Title III), and telecommunications (Title IV). This preamble focuses on Title II because pedestrian facilities in the public right-of-way are constructed and altered by state and local governments.

³Title II of the Americans with Disabilities Act contains two subtitles. Subtitle A applies to all state and local government programs, services, and activities. Subtitle B contains two parts. Subtitle B, Part I applies to designated public transportation provided by state and local governments by bus, rail, or other conveyance (other than aircraft or intercity or commuter rail) as a general or special service (including charter service) to the general public on a regular and continuing basis. Subpart B, Part II applies to public transportation provided by the National Railroad Passenger Corporation and commuter authorities by intercity and commuter rail. The Department of Justice is responsible for issuing regulations to implement Subtitle A of Title II, except for matters within the scope of authority of the Department of Transportation under Parts I and II of Subtitle B of Title II. See 42 U.S.C. 12134. The Department of Transportation is responsible for issuing regulations to implement Parts I and II of Subtitle B of Title II. See 42 U.S.C. 12149 and 12164.

⁴Subtitle A of Title II of the Americans with Disabilities Act requires that the regulations issued by the Department of Justice include accessibility standards that are “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board.” 42 U.S.C. 12134(c). The accessibility standards issued by the Department of Justice can include additional or modified requirements provided they are consistent with the Access Board’s guidelines.

⁵In September 2010, the Department of Justice issued regulations with revised accessibility standards for Titles II and III of the Americans with Disabilities Act (DOJ 2010 Standards). See 75 FR 56164 (September 15, 2010). Compliance with the DOJ 2010 Standards is required on or after March 15, 2012. State and local governments are permitted to comply with earlier standards (DOJ 1991 Standards without the elevator exception or UFAS) or the DOJ 2010 Standards between September 15, 2010 and March 14, 2012. Additional information on the applicable standards and their effective dates is available on the Department of Justice website at: http://www.ada.gov/revised_effective_dates−2010.htm. The DOJ 2010 Standards are available on the Department of Justice website at: http://www.ada.gov/ 2010ADAstandards_index.htm.

⁶Parts I and II of Subtitle B of Title II of the Americans with Disabilities Act require that the regulations issued by the Department of Transportation include accessibility standards that are “consistent with the minimum guidelines and requirements issued by the Architectural and Transportation Barriers Compliance Board.” 42 U.S.C. 12149 (b) and 12163. The accessibility standards issued by the Department of Transportation can include additional or modified requirements provided they are consistent with the Access Board’s guidelines.

Section 504 of the Rehabilitation Act

Section 504 of the Rehabilitation Act (29 U.S.C. 794) (hereinafter referred to as “Section 504”) prohibits discrimination against individuals with disabilities under any program or activity receiving federal financial assistance. The term “program or activity” includes all the operations of a state or local government entity that receives federal financial assistance directly or indirectly from the federal government. See 29 U.S.C. 794 (b). Each federal agency that provides federal financial assistance is responsible for issuing regulations to implement Section 504 that are consistent with requirements established by the Department of Justice. See Executive Order 12250 in Appendix A to 28 CFR part 41. The Department of Justice requires facilities designed, constructed, or altered by recipients of federal financial assistance to be accessible to individuals with disabilities. See 28 CFR 41.58.

The Department of Transportation provides federal financial assistance to state and local governments for the development of transportation networks, including pedestrian facilities in the public right-of-way.⁷ The regulations issued by the Department of Transportation to implement Section 504 require facilities designed, constructed, or altered by recipients of federal financial assistance from the Department to comply with accessibility standards included in the Department’s regulations implementing the public transportation parts of Title II of the Americans with Disabilities Act, or the Uniform Federal Accessibility Standards. See 49 CFR §27.3. As discussed above, the accessibility standards included in the Department of Transportation regulations implementing the public transportation parts of Title II of the Americans with Disabilities Act adopt, with additions and modifications, the Access Board’s current guidelines, which are discussed below under the Need for Rulemaking. See 49 CFR 37.9 and Appendix A to 49 CFR part 37.

The Department of Transportation is responsible for investigating complaints and conducting compliance reviews under Section 504 relating to recipients of federal financial assistance from the Department. See 49 CFR 27.121 and 27.123.

⁷See Department of Transportation “Policy Statement on Bicycle and Pedestrian Accommodation Regulations and Recommendations” at: http://www.dot.gov/affairs/2010/bicycle-ped.html.

Architectural Barriers Act

The Architectural Barriers Act (42 U.S.C. 4151 et seq.) requires certain facilities financed with federal funds to be accessible to individuals with disabilities. The Architectural Barriers Act covers facilities financed in whole or part by a federal grant or loan where the federal agency that provides the grant or loan is authorized to issue standards for the design, construction, or alteration of the facilities.⁸ See 42 U.S.C. 4151 (3). The General Services Administration is required to issue accessibility standards for facilities covered by the Architectural Barriers Act.⁹ See 42 U.S.C. 4156. The accessibility standards issued by the General Services Administration adopt, without any additions or modifications, the Access Board’s current guidelines, which are discussed below under the Need for Rulemaking. See 41 CFR 102‒76.65.

The Access Board is responsible for enforcing the Architectural Barriers Act. See 29 U.S.C 792 (b) (1) and (e).

⁸The Architectural Barriers Act also covers facilities constructed, altered, or leased by federal agencies; and facilities constructed or altered by the Washington Metropolitan Area Transit Authority. See 42 U.S.C. 4151 (1), (2), and (4).

⁹The accessibility standards issued by the General Services Administration apply to all facilities covered by the Architectural Barriers Act, except for postal, military, and residential facilities. The United States Postal Service is responsible for issuing accessibility standards for postal facilities; the Department of Defense is responsible for issuing accessibility standards for military facilities; and the Department of Housing and Urban Development is responsible for issuing accessibility standards for residential facilities. See 42 U.S.C. 4153, 4154, and 4154a.