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.

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).

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).

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).

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.

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