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.

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.

Requirements in Proposed Guidelines That Will Have More Than Minimal Impacts on State and Local Transportation Departments

Requirement

Governmental Units Affected

Detectable warning surfaces required on newly constructed and altered curb ramps and blended transitions at pedestrian street crossings (R208.1 and R305)

Will affect state and local transportation departments that do not currently provide detectable warning surfaces on curb ramps

All state transportation departments currently specify detectable warning surfaces on curb ramps in their standard drawings; most local transportation departments maintain standard drawings that are consistent with standard drawings maintained by their state transportation departments

Questions 4, 5, and 6 in preamble seek information on state and local transportation departments that do not currently provide detectable warning surfaces on curb ramps

Accessible pedestrian signals and pushbuttons required when pedestrian signals newly installed or replaced at signalized intersections (R209)

Will affect state and local transportation departments that do not currently provide accessible pedestrian signals and pedestrian pushbuttons when pedestrian signals are newly installed or replaced at signalized intersections

Some state and local transportation departments currently provide accessible pedestrian signals and pedestrian pushbuttons when pedestrian signals are newly installed or replaced at signalized intersections; TEA-21 (23 U.S.C. 217 (g)) directed that audible traffic signals be included in transportation plans and projects where appropriate

Question 9 in preamble seeks information on state and local transportation departments that currently provide accessible pedestrian signals and pedestrian pushbuttons when pedestrian signals are newly installed or replaced at signalized intersections

Maximum cross slope of 2 percent required on pedestrian access routes, including within pedestrian street crossings with yield or stop control (R204.3 and R302.6)

Will affect state and local transportation departments that construct new tabled intersections in hilly urban areas which contain pedestrian street crossings with yield or stop control

Question 14 in preamble seeks information on the current design policies and practices of state and local transportation departments with respect to tabling newly constructed intersections in hilly urban areas, particularly with respect to extending the tabling to pedestrian street crossings with yield or stop control

Pedestrian activated signals required at roundabouts with multi-lane pedestrian crossings (R206 and R306.3.2)

Will affect state and local transportation departments that construct new roundabouts with multi-lane pedestrian street crossings

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.

Estimated Total Annual Costs for Requirements That Will Have More Than Minimal Impacts on State and Local Transportation Departments

Requirement

Additional Costs Per Element or Facility Due to Requirement

Number of Elements or Facilities Constructed or Altered on Annual Basis

Total Annual Costs for Requirement

Detectable warning surfaces required on newly constructed and altered curb ramps and blended transitions at pedestrian street crossings (R208.1 and R305)

$48 to $240 for detectable warning materials for typical curb ramp

Question 8 in preamble seeks additional information on costs for detectable warning materials and installation of the materials on typical curb ramp

No information available

Question 7 in preamble seeks information on number of curb ramps that are constructed or altered on an annual basis in the public right-of-way

No estimate provided

Total annual costs will depend on number of state and local transportation departments that do not currently provide detectable warning surfaces on curb ramps, and number of curb ramps that they construct or alter on an annual basis

Accessible pedestrian signals and pushbuttons required when pedestrian signals newly installed or replaced at signalized intersections (R209)

$3,600 per signalized intersection

Question 10 in preamble seeks additional information on costs for providing accessible pedestrian signals and pedestrian pushbuttons at signalized intersections

Pedestrian signals newly installed or replaced at 13,095 signalized intersections on an annual basis

$47 million

Maximum cross slope of 2 percent required on pedestrian access routes, including within pedestrian street crossings with yield or stop control (R204.3 and R302.6)

$60,000 per tabled intersection

Question 15 in preamble seeks additional information on costs to extend tabling of newly constructed intersections in hilly urban areas to pedestrian street crossings with yield or stop control

No information available

Question 16 in preamble seeks information on number of tabled intersections which contain pedestrian street crossings with yield or stop control that are newly constructed in hilly urban areas on an annual basis

No estimate provided

Total annual costs will depend on number of tabled intersections which contain pedestrian street crossings with yield or stop control that are newly constructed in hilly urban areas on an annual basis

Pedestrian activated signals required at roundabouts with multi-lane pedestrian crossings (R206 and R306.3.2)

$90,000 to $230,000 per roundabout

Question 19 in preamble seeks additional information on costs to provide pedestrian activated signals at roundabouts with multi-lane pedestrian crossings

27 new roundabouts with multi-lane pedestrian street crossings constructed on an annual basis

$2.4 million to $6.2 million

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.

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.

Governmental Jurisdictions

Population Less Than 50,000

County

2,178

Municipal

18,824

Town or Township

16,371

Total

37,375

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.

List of Subjects in 36 CFR Part 1190

Buildings and facilities, Civil rights, Individuals with disabilities, Transportation.

_________________________________
Nancy Starnes,
Chair.

 

NOTES

1 Thee 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.

2 Other 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.

3 Title 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.

4 Subtitle 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.

5 In 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.

6 Parts 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.

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

8 The 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).

9 The 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.

10 101 Cong. Rec. H4629 and 4630 (July 12, 1990); 101 Cong. Rec. S9695 (July 13, 1990).

11 The 2004 ADA and ABA Accessibility Guidelines are codified in 36 CFR part 1191and 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.

12 The 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."

13 The 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.

14 The 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.

15 The advisory committee report is available on the Access Board website .

16 The 2002 and 2005 draft guidelines and comments submitted on the 2