[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Proposed Rules]
[Pages 58462-58465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28679]
[[Page 58461]]
_______________________________________________________________________
Part VI
Department of Justice
_______________________________________________________________________
Office of the Attorney General
_______________________________________________________________________
28 CFR Part 35
Nondiscrimination on the Basis of Disability in State and Local
Government Services; Proposed Rule
Federal Register / Vol. 60, No. 227 / Monday, November 27, 1995 /
Proposed Rules
[[Page 58462]]
DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 35
[Order No. 1999-95]
Nondiscrimination on the Basis of Disability in State and Local
Government Services
agency: Department of Justice.
action: Proposed rule.
-----------------------------------------------------------------------
summary: This proposed rule would amend the Department of Justice
regulation implementing Title II of the Americans with Disabilities Act
to clarify the requirement for installation of curb ramps at existing
pedestrian walkways. The proposal would extend the time period for
compliance to January 26, 2000, for curb ramps serving State and local
government facilities, transportation, places of public accommodation,
other places of employment, and at the residences of individuals with
disabilities. It would extend the time period for providing curb ramps
at existing pedestrian walkways in other areas until January 26, 2005,
and it would require public entities to include a schedule for the
implementation of these requirements in their transition plans.
dates: To be assured of consideration, comments must be in writing and
must be received on or before January 26, 1996. Comments that are
received after the closing date will be considered to the extent
practicable.
addresses: Comments on this proposed rule should be sent to: John L.
Wodatch, Chief, Disability Rights Section, Civil Rights Division, U.S.
Department of Justice, Rulemaking Docket 007, P.O. Box 65485,
Washington, DC 20035.
Comments may also be sent to the Civil Rights Division via the
Internet. Comments should be addressed to:
[email protected] If your comment is transmitted in a
word processing file, please specify the format. Flat ASCII files are
preferred.
Comments submitted to the Department of Justice will be available
for inspection in the offices of the Disability Rights Section, 1425
New York Avenue NW., Washington, DC from 9:00 a.m. to 5:00 p.m., Monday
through Friday, except legal holidays from December 13, 1995, until the
Department publishes the rule in final form. Persons who need
assistance to review the comments will be provided with appropriate
aids such as readers or magnification devices.
To be included in the record of this rulemaking, comments must
include the name and address of the commenter. Commenters who choose to
transmit their comments via the Internet should include their name and
address in the text of the comment. Electronically transmitted comments
that identify the commenter by screen name only will not be included in
the record.
for further information contact: Janet Blizard, (202) 307-0663. The ADA
Information Line, Disability Rights Section, Civil Rights Division,
U.S. Department of Justice, Washington, DC 20530, (800) 514-0301
(voice), (800) 514-0383 (TDD). These telephone numbers are toll-free
numbers.
SUPPLEMENTARY INFORMATION:
Availability of Accessible Format
Copies of this rule are available in the following accessible
formats: large print, Braille, electronic file on computer disk, and
audio-tape. Copies may be obtained from the Disability Rights Section
at the telephone numbers listed above. The rule is also available on
the Civil Rights Division's electronic bulletin board at (202) 514-
6193. This telephone number is not a toll-free number. The rule is also
available on the Internet. It can be accessed with gopher client
software (gopher.usdoj.gov), through other gopher servers using the
University of Minnesota master gopher (under North America, USA, All,
Department of Justice), with World Wide Web software (http://
www.usdoj.gov), or through the White House WWW server (http://
www.whitehouse.gov).
Background
The Department of Justice's (Department) regulation implementing
title II of the Americans with Disabilities Act of 1990, Pub. L. 101-
336, 42 U.S.C. 12131-12134 (ADA), provides that a public entity may not
deny the benefits of its programs, activities, and services to
individuals with disabilities because its facilities are inaccessible.
28 CFR 35.149. Under this regulation, maintenance of pedestrian
walkways by public entities is a covered program that is required to be
made accessible by the installation of curb ramps where pedestrian
walkways cross curbs. Because of the unique and significant capital
expenses involved in the installation of curb ramps where existing
pedestrian routes cross curbs, Senators Bob Dole, Tom Harkin, Orrin
Hatch, Edward Kennedy, and John McCain, who were among the principal
Senate sponsors of the ADA, have asked the Department to amend the
title II regulation to provide additional time for public entities to
meet their obligation to provide access to public pedestrian walkways.
The Department considers the suggested extension to be a reasonable and
appropriate modification and accordingly is issuing this proposed rule.
On July 26, 1991, the Department published its final rule
implementing subtitle A of title II of the ADA. 56 FR 35694. This
regulation was codified at 28 CFR Part 35. Subtitle A of title II
protects qualified individuals with disabilities from discrimination on
the basis of disability in the services, programs, or activities of all
covered public entities. It extends the prohibition of discrimination
established by section 504 of the Rehabilitation Act of 1973, 29 U.S.C.
794, to all activities of State and local governments, including those
that do not receive federal financial assistance, and incorporates
specific prohibitions of discrimination on the basis of disability from
titles I, III, and V of the ADA.
This proposed rule would revise the program accessibility
requirements currently published at 28 CFR 35.150 to incorporate
specific guidance with respect to the installation of curb ramps at
intersections that are not otherwise being altered. This proposed rule
would not affect the requirements of 28 CFR 35.151(e), which requires
that if walkways are provided, curb ramps or other sloped areas must be
installed at all newly constructed or altered streets, roads, highways,
and street-level pedestrian walkways. Thus, the ADA would continue to
require that, whenever a State or local government puts in a new street
or alters an existing street, it must also construct curb ramps at any
intersection that has curbs that bar entry from a pedestrian walkway.
This proposed rule is distinct from the Department's June 20, 1994
(59 FR 31808) proposal to amend 28 CFR 35.151. The Department's June
1994 proposal would adopt, as the ADA Standards for Accessible Design,
the ADA Accessibility Guidelines for Buildings and Facilities, revised
and published in an interim final rule of the same date by the
Architectural and Transportation Barriers Compliance Board (Access
Board). Comments on the Department's proposed rule and the Access
Board's interim final rule are now being considered. This proposal to
amend 28 CFR 35.150 does not affect the Department's June 20, 1994,
notice of proposed rulemaking or the Access Board's interim final rule.
Program Accessibility
Title II of the ADA prohibits discrimination on the basis of
disability in any of the services, programs, or activities of a covered
public entity.
[[Page 58463]]
Subpart D of the title II regulation, Program Accessibility, provides
that a public entity may not deny the benefits of its programs,
activities, and services to individuals with disabilities because its
facilities are inaccessible. A public entity's services, programs, or
activities, when viewed in their entirety, must be readily accessible
to and usable by individuals with disabilities. This standard, known as
``program accessibility,'' applies to all programs operated in existing
facilities by a public entity. Public entities, however, are not
necessarily required to make each of their existing facilities
accessible.
In addition, a public entity does not have to take any action that
it can demonstrate would result in a fundamental alteration in the
nature of its program or activity or in undue financial and
administrative burdens. This determination can only be made by the head
of the public entity or his or her designee and must be accompanied by
a written statement of the reasons for reaching that conclusion. The
determination that undue burdens would result must be based on all
resources available for use in the program. If an action would result
in such an alteration or such burdens, the public entity must take any
other action that would not result in such an alteration or such
burdens but would nevertheless ensure that individuals with
disabilities receive the benefits and services of the program or
activity.
Installation of curb ramps to provide access to existing pedestrian
walkways on existing streets that are not otherwise being altered may
be necessary in order to provide access to the ``program'' of using
public streets and walkways. As explained in the preamble to the final
title II regulation--
The legislative history of title II of the ADA makes it clear
that, under title II, ``local and state governments are required to
provide curb cuts on public streets.'' Education and Labor report at
84. As the rationale for the provision of curb cuts, the House
report explains, ``The employment, transportation, and public
accommodation sections of * * * [the ADA] would be meaningless if
people who use wheelchairs were not afforded the opportunity to
travel on and between the streets.'' Id. Section 35.151(e), which
establishes accessibility requirements for new construction and
alterations, requires that all newly constructed or altered streets,
roads, or highways must contain curb ramps or other sloped areas at
any intersection having curbs or other barriers to entry from a
street level pedestrian walkway, and all newly constructed or
altered street level pedestrian walkways must have curb ramps or
other sloped areas at intersections to streets, roads, or highways.
A new paragraph (d)(2) has been added to the final rule to clarify
the application of the general requirement for program accessibility
to the provision of curb cuts at existing crosswalks. This paragraph
requires that the transition plan include a schedule for providing
curb ramps or other sloped areas at existing pedestrian walkways,
giving priority to walkways serving entities covered by the Act,
including State and local government offices and facilities,
transportation, public accommodations, and employers, followed by
walkways serving other areas. Pedestrian ``walkways'' include
locations where access is required for use of public transportation,
such as bus stops that are not located at intersections or
crosswalks.
56 FR 35710.
The Department further explained the application of the concept of
program accessibility in its Title II Technical Assistance Manual,
which advises that:
Public entities that have responsibility or authority over
streets, roads, or walkways must prepare a schedule for providing
curb ramps where pedestrian walkways cross curbs. Public entities
must give priority to walkways serving State and local government
offices and facilities, transportation, places of public
accommodation, and employees, followed by walkways serving other
areas. This schedule must be included as part of a transition plan.
* * *
To promote both efficiency and accessibility, public entities
may choose to construct curb ramps at every point where a pedestrian
walkway intersects a curb. However, public entities are not
necessarily required to construct a curb ramp at every such
intersection.
Alternative routes to buildings that make use of existing curb
cuts may be acceptable under the concept of program accessibility in
the limited circumstances where individuals with disabilities need
only travel a marginally longer route. In addition, the fundamental
alteration and undue burdens limitations may limit the number of
curb ramps required.
To achieve or maintain program accessibility, it may be
appropriate to establish an ongoing procedure for installing curb
ramps upon request in areas frequented by individuals with
disabilities as residents, employees, or visitors.
Section II-5.3000.
The title II regulation requires public entities to achieve program
accessibility by January 26, 1992. Where structural changes to existing
facilities are required to provide program accessibility, section
35.150(c) provides that such structural changes must be made as
expeditiously as possible, but in no event later than January 26, 1995,
unless the public entity can demonstrate that meeting this deadline
would result in a fundamental alteration of its program or would impose
undue financial and administrative burdens.
This proposed amendment responds to concern expressed by Senators
Dole, Harkin, Hatch, Kennedy, and McCain that the requirement to
provide program accessibility to existing intersections by installing
curb ramps requires structural alterations to a substantial portion of
the existing infrastructure of most cities, and imposes an obligation
that many jurisdictions were unable to meet by January 26, 1995. After
due consideration, the Department has concluded that modification of
the regulation to permit additional time for public entities to achieve
compliance is appropriate. This proposed rule would therefore revise 28
CFR 35.150(c) to extend to January 26, 2000, the time period for
compliance with the requirements for structural alterations to provide
curb ramps in pedestrian walkways to provide access to State and local
government facilities, transportation, places of public accommodation,
other places of employment, and the residences of individuals with
disabilities. The proposed rule would extend the deadline for providing
access to existing pedestrian walkways in other residential and non-
commercial areas to January 26, 2005. It is the Department's hope that
this extension will provide the additional flexibility necessary for
State and local governments to comply with the ADA in light of strained
fiscal resources, and that it will actually increase the number of curb
ramps that will be installed on this nation's streets.
The Department seeks comments from State and local governments on
the difficulties caused by the present deadline for curb ramps. While
anecdotal evidence is useful, the Department would like to receive
comprehensive information about the fiscal impact of the curb ramp
requirement on the budgets of State and local governments, including
the cost of installing curb ramps on existing pedestrian walkways, the
number of curb ramps installed, the number of curb ramps that are
planned to be added, and the amount of funds used for this requirement,
both in terms of gross numbers and percentage of the State or local
government budget.
The Department also requests information from people with
disabilities and the organizations that represent them on the effect
that this proposal will have on their ability to travel in their
communities. We would profit from hearing specific, detailed reports,
rather than generalized statements.
This proposed rule would require public entities to ensure that
providing curb ramps serving the residences of individuals with
disabilities shall be given priority over the installation of curb
ramps in other residential or non-
[[Page 58464]]
commercial areas by requiring the former category of curb ramps to be
installed by January 26, 2000. After that date, if a public entity
receives a request from an individual with a disability for a curb ramp
serving that individual's residence, installing a curb ramp in response
to that request should take precedence over the installation of other
curb ramps serving residential or non-commercial areas.
It has been suggested that this proposed rule should require public
entities to establish a formal process through which individuals with
disabilities may request the installation of curb ramps at pedestrian
walkways serving their residences, and should further require that curb
ramps requested through this process be installed within one year of
the request. This would represent a significant change from the
Department's current policy, which recommends, but does not require,
the development of a request procedure, and does not require the
installation of curb ramps at the residences of individuals with
disabilities to be given priority over the installation of curb ramps
serving public and commercial facilities.
The Department recognizes that it may be beneficial to individuals
with disabilities to be assured that they will be able to have curb
ramps installed in the public pedestrian routes serving their
residences. However, the Department is concerned, given the limitations
on available public funds, that the imposition of a requirement to
provide curb ramps at private residences within a year of a request may
inhibit the ability of a public entity to give priority to installing
curb ramps on more heavily traveled routes serving public and
commercial facilities.
The Department is specifically seeking public comment on this issue
to assist us in determining whether the installation of curb ramps at
private residences should be given priority over the installation of
curb ramps in public and commercial areas. The Department also invites
recommendations about ways in which such a process could be implemented
fairly and efficiently.
Concern has been expressed about the possible effect of this rule
on the usability of transportation systems because bus stops may lack
curb ramps for a longer period of time. It is feared that a lack of
accessible municipal bus stops may defeat transportation providers'
efforts to make their systems accessible. The Department is
specifically seeking comments regarding the impact of this rule on such
systems and suggestions regarding how to address that impact.
Finally, the proposed rule requires public entities with 50 or more
employees that choose to take advantage of this extension of time to
amend their transition plans to establish specific schedules for
providing access to public pedestrian walkways in compliance with the
deadlines established by this proposed rule.
This proposed rule, while extending the deadline for constructing
curb ramps necessary to provide program access, expressly provides that
access to pedestrian walkways shall be provided as expeditiously as
possible. By requiring public entities that take advantage of the new
deadlines to develop a transition plan with a specific compliance
schedule, the Department anticipates that public entities will not use
the extension as a means of delaying compliance, but will view their
obligation to provide access to public pedestrian walkways as an
ongoing process that will result in a steady improvement in the
accessibility of public pedestrian routes.
In developing a revised transition plan, public entities must
comply with 28 CFR 35.150(d)(1), which requires public entities to
provide an opportunity for interested persons, including individuals
with disabilities or organizations representing individuals with
disabilities, to participate in the development of the transition plan
by submitting comments. Public entities should be aware that
individuals with disabilities who rely on curb ramps to enable them to
use the public walkways may provide valuable insight on the
accessibility of public programs, activities, and services. For
example, individuals with mobility impairments may be the best source
of information about locations where existing curbs constitute
significant barriers to their use of public streets and pedestrian
walkways.
Regulatory Process Matters
This proposed rule has been drafted in accordance with the
principles of Executive Order 12866. The Department has determined that
it is a significant regulatory action. Accordingly, it has been
reviewed and approved by the Office of Management and Budget.
Executive Order 12875 prohibits executive departments and agencies
from promulgating any regulation that is not required by statute and
that creates a mandate upon a State, local, or tribal government unless
certain conditions are met. This proposed rule creates no new mandates.
Consistent with the spirit of Executive Order 12875, this regulation
modifies an existing regulatory requirement to provide flexibility to
covered public entities in meeting their obligations under title II of
the ADA.
The Department has also determined that this proposed rule would
not have a significant economic impact on a substantial number of small
entities because it imposes no new obligations. Instead, it provides
greater flexibility in the implementation of requirements now
established in 28 CFR 35.150. Therefore, it is not subject to the
Regulatory Flexibility Act, 5 U.S.C. 601-611.
The transition plan required by this proposed rule is an
information collection that is subject to the Paperwork Reduction Act
and the regulations established by the Office of Management and Budget
in 5 CFR part 1320. Therefore, the Department has submitted this
proposed information collection to the Office of Management and Budget
for its review and approval.
List of Subjects in 28 CFR Part 35
Administrative practice and procedure, Buildings and facilities,
Civil rights, Communications equipment, Individuals with disabilities,
Reporting and recordkeeping requirements, State and local governments.
Accordingly, Part 35 of Chapter I of Title 28 of the Code of
Federal Regulations is proposed to be amended as follows:
PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND
LOCAL GOVERNMENT SERVICES
1. The authority citation for 28 CFR Part 35 continues to read as
follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L.
101-336 (42 U.S.C. 12134).
2. In Sec. 35.150, paragraphs (c) and (d)(2) are revised to read as
follows:
Sec. 35.150 Existing facilities.
* * * * *
(c) Time period for compliance. (1) Except as provided in paragraph
(c)(2) of this section, where structural changes in facilities are
undertaken to comply with the obligations established under this
section, such changes shall be made no later than January 26, 1995, but
in any event as expeditiously as possible.
(2)(i) A public entity shall comply with the obligations of this
section relating to provision of curb ramps or other sloped areas where
existing public pedestrian walkways cross curbs at locations serving
State and local government offices and facilities, transportation,
places of public accommodation, employers, and the residences of
individuals with
[[Page 58465]]
disabilities no later than January 26, 2000, but in any event as
expeditiously as possible.
(ii) A public entity shall comply with the obligations of this
section relating to provision of curb ramps or other sloped areas where
existing public pedestrian walkways cross curbs at areas not subject to
paragraph (c)(2)(i) of this section no later than January 26, 2005, but
in any event as expeditiously as possible.
(d) * * *
(2) If a public entity has responsibility or authority over
streets, roads, or walkways, its transition plan shall include a
specific schedule for the installation of curb ramps or other sloped
areas where pedestrian walkways cross curbs that complies with the
requirements of paragraphs (c)(2)(i) and (c)(2)(ii) of this section.
* * * * *
Dated: November 10, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-28679 Filed 11-24-95; 8:45 am]
BILLING CODE 4410-01-M
