Introduction

 

The Architectural and Transportation Barriers Compliance Board (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 has proposed accessibility guidelines for pedestrian facilities in the public right-of-way. The Access Board has prepared this regulatory assessment of the proposed guidelines pursuant to Executive Orders 12866 and 13563. The report also includes an initial regulatory flexibility analysis pursuant to the Regulatory Flexibility Act (5 U.S.C. §§601 et seq.).

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.

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).

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.

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).