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

SUPPLEMENTARY INFORMATION:

Availability of Proposed Guidelines with Figures

The proposed guidelines will be codified as an appendix to 36 CFR part 1190. In the past, the Architectural and Transportation Barriers Compliance Board (Access Board) submitted “camera ready” copy (i.e., images) of its guidelines to the Federal Register for the appendices since the guidelines included figures that illustrate the requirements in the guidelines. The appendices were not word searchable when viewed online because they are images. After discussions with the Office of the Federal Register, the Access Board has decided to submit the proposed guidelines as a Word document with only one image, the International Symbol of Accessibility (Figure R411), so the appendix will be word searchable when viewed on-line. A copy of the proposed guidelines with figures is available on the Access Board website at: http://www.access-board.gov/prowac/nprm.htm. Except for the International Symbol of Accessibility (Figure R411), the figures are for illustration purposes only and do not establish requirements. The copy of the proposed guidelines on the Access Board website also sets out advisory sections in shaded boxes, and indents subsections under the main sections.

Introduction

The Access Board is an independent federal agency established by section 502 of the Rehabilitation Act (29 U.S.C. 792).¹ The Access Board is responsible for developing accessibility guidelines for the design, construction, and alteration of facilities to ensure that they are readily accessible to and usable by individuals with disabilities. The Access Board’s guidelines play an important part in the implementation of three laws that require newly constructed and altered facilities to be accessible to individuals with disabilities: the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and the Architectural Barriers Act. As further discussed under the Statutory and Regulatory Background, these laws require other federal agencies to issue regulations which include accessibility standards for the design, construction, and alteration of facilities. The regulations issued by the other federal agencies to implement these laws adopt, with or without additions and modifications, the Access Board’s guidelines as accessibility standards. When the Access Board’s guidelines are adopted, with or without additions and modifications, as accessibility standards in regulations issued by other federal agencies implementing these laws, compliance with the accessibility standards is mandatory.

^1. The Access Board consists of 13 members appointed by the President from the public, a majority of which are individuals with disabilities, and the heads of 12 federal agencies or their designees whose positions are Executive Level IV or above. The federal agencies are: The Departments of Commerce, Defense, Education, Health and Human Services, Housing and Urban Development, Interior, Justice, Labor, Transportation, and Veterans Affairs; General Services Administration; and United States Postal Service.

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.

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.

Rulemaking History

The Access Board began developing accessibility guidelines for pedestrian facilities in the public right-of-way shortly after the Americans with Disabilities Act was enacted in 1990. Proposed guidelines for state and local government facilities, including pedestrian facilities in the public right-of-way, were initially issued in 1992. 57 FR 60612 (December 21, 1992). Interim guidelines were issued in 1994. 59 FR 31676 (June 20, 1994). Final guidelines were issued in 1998, but did not include requirements for pedestrian facilities in the public right-of-way because comments submitted on the proposed and interim guidelines demonstrated a need for additional research, as well as education and outreach. 63 FR 2000 (January 13, 1998).

The Access Board subsequently sponsored research on accessible pedestrian signals and pedestrian pushbuttons, detectable warning surfaces, and pedestrian facilities at roundabouts.¹³ The Access Board also produced a series of videos, a design guide, and an accessibility checklist for pedestrian facilities in the public right-of-way, and conducted training programs around the country. The Access Board coordinated its work with organizations representing state and local government transportation officials and other transportation industry professionals, including the American Association of State Highway and Transportation Officials, Institute of Transportation Engineers, National Committee on Uniform Traffic Control Devices, and Transportation Research Board.

The Access Board established a federal advisory committee in 1999 to recommend accessibility guidelines for pedestrian facilities in the public right-of-way. The advisory committee included representatives of state and local governments, the transportation industry, disability organizations, and other interested groups.¹⁴  The advisory committee provided significant sources of expertise and produced consensus recommendations for accessibility guidelines for pedestrian facilities in the public right-of-way. The advisory committee presented its recommendations, “Building a True Community: Final Report of the Public Rights-of-Way Access Advisory Committee”, to the Access Board in 2001.¹⁵

The Access Board developed draft accessibility guidelines for pedestrian facilities in the public right-of-way based on the advisory committee’s recommendations, and made the draft guidelines available for public review and comment in 2002.¹⁶  67 FR 41206 (June 17, 2002). The Access Board revised the draft guidelines in 2005 and made the revised draft guidelines available for public review to facilitate the gathering of data for a regulatory assessment of the potential costs and benefits of the guidelines. 70 FR 70734 (November 23, 2005). 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.¹⁷

¹³The reports on the research sponsored by the Access Board and technical assistance materials on accessible design of pedestrian facilities in the public right-of-way are available on the Access Board website at: http://www.access-board.gov/prowac/index.htm.

¹⁴The following organizations were members of the advisory committee: AARP, America Walks, American Association of State Highway and Transportation Officials, American Council of the Blind, American Institute of Architects, American Public Transit Association, American Public Works Association, Association for Education and Rehabilitation of the Blind and Visually Impaired, Bicycle Federation of America, Californians for Disability Rights, Canadian Standards Association (Technical Committee on Barrier- Free Design), City of Birmingham (Department of Planning, Engineering and Permits), Council of Citizens with Low Vision International, Disability and Business Technical Assistance Centers, Disability Rights Education and Defense Fund, Federal Highway Administration, Hawaii Commission on Persons with Disabilities, Hawaii Department of Transportation, Institute of Traffic Engineers, Los Angeles Department of Public Works (Bureau of Street Services), Massachusetts Architectural Access Board, Municipality of Anchorage, National Center for Bicycling and Walking, National Council on Independent Living, National Federation of the Blind, New York State Department of Transportation, Paralyzed Veterans of America, Portland Office of Transportation, San Francisco Mayor’s Office on Disability, State of Alaska, TASH, Texas Department of Transportation, and The Seeing Eye.

¹⁵The advisory committee report is available on the Access Board website at: http://www.accessboard. gov/prowac/commrept/index.htm.

¹⁶The 2002 and 2005 draft guidelines and comments submitted on the 2002 draft guidelines are available on the Access Board website at: http://www.access-board.gov/prowac/index.htm.

¹⁷Volpe Center, “Cost Analysis of Public Rights-of-Way Accessibility Guidelines” (November 29, 2010). The document is available in the rulemaking docket (ATBCB−2011‒0004) at: http://www.regulations.gov.

Major Issues

Transportation officials who commented on the 2002 draft guidelines raised some major issues that are addressed below.

Alterations to Existing Facilities

The draft guidelines required alterations to existing facilities to comply with the requirements for new construction to the maximum extent feasible. Most of the improvements in the public right-of-way involve alterations to existing facilities. Transportation officials noted that the meaning of the term “to the maximum extent feasible” was not clear and wanted additional guidance on how to apply the guidelines when existing facilities are altered.

The proposed guidelines clarify that where elements, spaces, or facilities are altered, each altered element, space, or facility within the scope of the project must comply with the applicable requirements for new construction (see R202.3). The phrase “within the scope of the project” is intended to focus on whether the alteration project presents an opportunity to design the altered element, space, or facility in an accessible manner. It is not intended for additional work to be done outside the scope of the project. For example, if an alteration project involves only installing pedestrian signals at existing intersections and there are no detectable warning surfaces on the curb ramps at the intersections, the proposed guidelines would require accessible pedestrian signals and pedestrian pushbuttons to be provided at the intersections because they are within the scope of the project, but would not require detectable warning surfaces to be provided on the curb ramps because they are not within the scope of the project. The proposed guidelines also clarify that where elements are altered or added to existing facilities but the pedestrian circulation path to the altered or added elements is not altered, the pedestrian circulation path is not required to comply with the proposed requirements for pedestrian access routes (see R202.1). For example, if a new bench is installed on a sidewalk that has a cross slope exceeding 2 percent, the sidewalk is not required to be altered to reduce the cross slope because the bench is installed on the sidewalk.

In addition, the proposed guidelines recognize that it is not always possible for altered elements, spaces, or facilities to fully comply with new construction requirements because of existing physical constraints. Where existing physical constraints make it impracticable for altered elements, spaces, or facilities to fully comply with the requirements for new construction, compliance is required to the extent practicable within the scope of the project (see R202.3.1). Existing physical constraints include, but are not limited to, underlying terrain, right-of-way availability, underground structures, adjacent developed facilities, drainage, or the presence of a notable natural or historic feature. The proposed guidelines permit flexibility in alterations to existing facilities where needed.

Existing Facilities That Are Not Altered

Transportation officials expressed concern about application of the draft guidelines to existing facilities that are not altered. The proposed guidelines clarify that the guidelines do not address existing facilities unless they are included within the scope of an alteration undertaken at the discretion of a covered entity (see R101.2).

The Department of Justice regulations implementing Title II of the Americans with Disabilities Act contain requirements for state and local governments regarding program accessibility and existing facilities. See 28 CFR 35.150. The Department of Transportation regulations implementing Section 504 also contain requirements for recipients of federal financial assistance from the Department regarding compliance planning. See 49 CFR 27.11 (c). The Access Board acknowledges that transportation officials are concerned about their obligations under the Title II of the Americans with Disabilities Act and Section 504 for existing facilities that are not altered, but the Access Board does not have the authority to address the application of the proposed guidelines to existing facilities that are not altered. When the Department of Justice and Department of Transportation conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504, they will address the application of the accessibility standards to existing facilities that are not altered. Comments concerning existing facilities that are not altered should be directed to the Department of Justice and Department of Transportation when they conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504.

Allowances for Typical Roadway Geometry

The 1991 ADAAG and 2004 ADA and ABA Accessibility Guidelines specify a maximum running slope of 5 percent and maximum cross slope of 2 percent for walking surfaces on accessible routes. The draft guidelines adapted these requirements for pedestrian access routes in the public right-of-way and made an allowance for typical roadway geometry by permitting the grade of pedestrian access routes within sidewalks to equal the general grade established for the adjacent street or highway. The draft guidelines also permitted the cross slope of pedestrian access routes within midblock pedestrian street crossings and of curb ramps at midblock pedestrian street crossings to equal the street or highway grade.

Transportation officials recommended that additional allowances be made for typical roadway geometry. The proposed guidelines include the following allowances for typical roadway geometry:

• The grade of pedestrian access routes within sidewalks is permitted to equal the general grade established for the adjacent street or highway (see R302.5).

• A maximum cross slope of 5 percent is permitted for pedestrian access routes within pedestrian street crossings without yield or stop control where vehicles can proceed through the intersection without slowing or stopping (see R302.6.1).

• The cross slope of pedestrian access routes within midblock pedestrian street crossings is permitted to equal the street or highway grade (see R302.6.2).

• The cross slope of curb ramps, blended transitions, and turning spaces at pedestrian street crossings without yield or stop control where vehicles can proceed through the intersection without slowing or stopping, and at midblock pedestrian street crossings are permitted to equal the street or highway grade (see R304.5.3).

• Clear spaces required at accessible pedestrian signals and pedestrian pushbuttons and at other accessible elements are permitted to have a running slope consistent with the grade of the adjacent pedestrian access route (see R404.2).

A maximum grade of 5 percent and maximum cross slope of 2 percent are required otherwise for pedestrian access routes within sidewalks and pedestrian street crossings (see R302.5 and R302.6).

Overview of Proposed Guidelines

The proposed guidelines apply to pedestrian facilities in the public right-of-way. The proposed guidelines define the public right-of-way to mean “public land or property, usually in interconnected corridors, that is acquired for or dedicated to transportation purposes” (see R105.5). The proposed guidelines ensure that the following facilities for pedestrian circulation and use located in the public right-of- way are readily accessible to and usable by pedestrians with disabilities:

• Sidewalks, pedestrian overpasses and underpasses, and other pedestrian circulation paths, including requirements for pedestrian access routes, alternate pedestrian access routes when pedestrian circulation paths are temporarily closed, and protruding objects along or overhanging pedestrian circulation paths;

• Pedestrian street crossings, medians, and pedestrian refuge islands, including requirements for curb ramps or blended transitions, and detectable warning surfaces;

• Pedestrian street crossings at roundabouts, including requirements for detectable edge treatments where pedestrian crossing is not intended, and pedestrian activated signals at multi-lane pedestrian street crossings;

• Pedestrian street crossings at multi-lane channelized turn lanes at roundabouts and at other signalized intersections, including requirements for pedestrian activated signals;

• Pedestrian signals, including requirements for accessible pedestrian signals and pedestrian pushbuttons;

• Transit stops and transit shelters for buses and light rail vehicles, including requirements for boarding and alighting areas at sidewalk or street level, boarding platforms, and route signs;

• Pedestrian at-grade rail crossings, including requirements for flangeway gaps;

• On-street parking that is marked or metered, and passenger loading zones;

• Pedestrian signs, including requirements for visible characters on signs and alternative requirements for audible sign systems and other technologies;

• Street furniture for pedestrian use, including drinking fountains, public toilet facilities, tables, counters, and benches; and

• Ramps, stairways, escalators, handrails, doors, doorways, and gates.

Use of Mandatory Language in Proposed Guidelines

The proposed guidelines use the mandatory language “shall” and “requirement” because the guidelines are intended to be adopted, with or without additions and modifications, as accessibility standards in regulations issued by other federal agencies implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act. In this regard, the proposed guidelines are analogous to model codes. Model codes use mandatory language but compliance with model codes is not mandatory until they are adopted by a state or local government. When the Access Board’s guidelines are adopted, with or without additions and modifications, as accessibility standards in regulations issued by other federal agencies implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act, compliance with the accessibility standards is mandatory. The other federal agencies will conduct separate rulemakings to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act. The other federal agencies will establish the effective dates for compliance with the accessibility standards when they complete their rulemakings. The other federal agencies may permit use of the proposed guidelines as best practices pending the completion of their rulemakings. However, the proposed guidelines are not legally enforceable until adopted, with or without additions and modifications, as accessibility standards by other federal agencies in regulations implementing Title II of the Americans with Disabilities Act, Section 504, and the Architectural Barriers Act.

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.