2024-14424. Federal Management Regulation; Accessibility Standard for Pedestrian Facilities in the Public Right-of-Way

AGENCY:

Office of Government-wide Policy (OGP), U.S. General Services Administration (GSA).

ACTION:

Final rule with 60-day comment period.

SUMMARY:

GSA is issuing a final rule amending the Federal Management Regulation (FMR) regarding real property design and construction to adopt the new accessibility guidelines issued by the Architectural and Transportation Barriers Compliance Board (Access Board).

DATES:

Effective date: September 3, 2024.

Comment date: Interested parties should submit written comments to the Regulatory Secretariat Division at the address shown below on or before September 3, 2024, to be considered in the formation of future rulemaking.

ADDRESSES:

Submit comments in response to FMR case 2023-102-03 to: Regulations.gov at https://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FMR Case 2023-102-03.” Select the link “Comment Now” that corresponds with FMR Case 2023-102-03. Follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FMR Case 2023-102-03” on your attached document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

Instructions: Please submit comments only and cite FMR Case 2023-102-03 in all correspondence related to this case. Comments received generally will be posted without change to https://www.regulations.gov, including any personal or business confidential information, or both, provided. To confirm receipt of your comment(s), please check https://www.regulations.gov approximately two to three days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT:

Mr. Chris Coneeney, Director, Real Property Policy Division, Office of Government- wide Policy, at 202-208-2956 or [e-mail], for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755 or [e-mail]. Please cite FMR Case 2023-102-03.

SUPPLEMENTARY INFORMATION:

I. Background

GSA is revising its Architectural Barriers Act Accessibility Standard to adopt the accessibility guidelines for pedestrian facilities in the public right-of-way dedicated to transportation, as defined in 41 CFR 102-76.100 (hereafter, pedestrian facilities in the public right-of-way), issued by the Access Board in its final rule “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way” that became effective on October 7, 2023 (36 CFR part 1190).^[1] That final rule provides minimum guidelines for all newly constructed pedestrian facilities and altered portions of existing pedestrian facilities for pedestrian circulation and use in the public right-of-way. These guidelines, once adopted, will serve as the technical basis of enforceable standards issued by GSA under the Architectural Barriers Act of 1968, as amended (ABA), and would ensure that facilities used by pedestrians that are subject to the ABA, such as sidewalks and crosswalks constructed or altered in the public right-of-way by Federal, state, and local governments using Federal funds, are readily accessible to and usable by pedestrians with disabilities.

The purpose of the guidelines issued by the Access Board is to ensure that pedestrian facilities located in the public right-of-way to which the ABA applies (as defined in § 102-76.60) are readily accessible to and usable by persons with disabilities. As noted by the Access Board, these guidelines were developed with public input from disability advocacy organizations, technical experts, individual members of the public with disabilities, and Federal agencies.

The Federal Government, which seeks to be a leader in accessibility, has been without clear, specific, enforceable technical accessibility standards for pedestrian facilities in the public right-of-way that are subject to the ABA. The adoption of the Access Board's guidelines as part of GSA's Architectural Barriers Act Accessibility Standard will create and support a consistent Federal standard to ensure accessibility in the public right-of-way.

The statutory underpinning for this rule is 42 U.S.C. 4152, which directs the Administrator of General Services to prescribe standards for the design, construction, and alteration of buildings (other than certain residential structures, and facilities of the Department of Defense and the United States Postal Service) to ensure, to the maximum extent feasible, that persons with disabilities have ready access to, and use of, such buildings.

The GSA standard would ensure that pedestrian facilities covered by the ABA in the public right-of-way would adhere to the Access Board's accessibility guidelines for pedestrian facilities in the public right-of-way. All other facilities that are referenced in 41 CFR 102-76.65 would be covered by the ABA standard previously issued by GSA.

Key accessibility features of pedestrian facilities in the public right-of-way covered by the GSA standard would include:

• Pedestrian Routes
• Alternate Pedestrian Routes
• Pedestrian Signals
• Crosswalks
• On-Street Parking
• Transit Stops
• Passenger Loading Zones

The GSA standard is applicable to new construction and alterations of pedestrian facilities subject to the ABA as stated in 41 CFR 102-76.60 that are on public land acquired for or dedicated to transportation purposes, or on other land where there is a legally established right for use by the public for transportation purposes.^[2]

Adopting this standard is another way for GSA to formalize its commitment to ensure accessibility for persons with disabilities by creating more accessible features in the public right-of-way.

Also, adopting this standard as part of its Architectural Barriers Act Accessibility Standard furthers GSA's commitment to Diversity, Equity, Inclusion, and Accessibility, as included in GSA's Strategic Plan ^[3] and implementation of Executive Orders 13985,^[4] 14035,^[5] and 14091.^[6] GSA's plan advances accessibility in many ways, but, in particular, through outreach to persons with disabilities. By adopting the guidelines for pedestrian facilities in the public right-of-way as part of its Architectural Barriers Act Accessibility Standard, GSA is directly addressing its policy of outreach to persons with disabilities by requiring enhanced accessible features to help ensure a more welcoming and accessible path to Federal facilities covered under § 102-76.65(a).

II. Discussion of the Final Rule

A. Summary of Significant Changes

GSA is adding §§ 102-76.100 through 102-76.125 to subpart C of part 102-76 of the FMR to incorporate the Access Board's “Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way” final rule, which became effective on October 7, 2023 (36 CFR part 1190), as part of its Architectural Barriers Act Accessibility Standard. If GSA did not adopt the Access Board's guidelines into its ABA standard, the status quo would be that GSA and every other entity that is subject to the ABA would continue to work with the various state and local guidelines and standards. By adopting these guidelines, GSA is endorsing a consistent standard applied to pedestrian facilities in the public right-of-way. This will reduce confusion and enhance accessibility for facilities subject to the ABA.

B. Regulatory Impact Analysis

During the first and subsequent years after publication of the rule, new construction employees and alteration and renovation employees (which include a combination of project managers and subject matter experts (SME)) must comply with the standards for pedestrian facilities in the public right-of-way. These employees will conduct an accessibility standards comparison review on applicable projects between state and local accessibility standards and Federal accessibility standards. GSA estimates this cost by multiplying the time required to review the regulation and guidance implementing the rule by the estimated hourly compensation. For the following calculations, GSA calculates the estimated hourly compensation ^[7] using the U.S. Office of Personnel Management's 2023 General Schedule (GS) Rest of United States Locality Pay Table,^[8] a full fringe benefit cost factor of 36.25 percent ^[9] and an overhead cost factor of 12 percent as provided by Office of Management and Budget (OMB) Circular A-76.^[10] GSA assumes the new construction employees and the alteration and renovation employees will, on average, stay consistent in the subsequent years.^[11] After publication of the rule, GSA anticipates additional construction costs will be incurred related to the accessibility improvements from this standard for applicable projects. GSA estimates this additional construction cost by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Below is a list of costs that GSA anticipates the Government will incur. GSA does not anticipate any costs to the public.

1. Governmentwide Training

The Government must educate its new construction employees and alteration and renovation employees on projects where the standard may apply through a governmentwide outreach to increase their familiarity with the standard. Below is a list of training and communication activities related to regulatory familiarization and compliance that GSA anticipates will occur. GSA assumes costs related to the development and updating of training materials are de minimis because the training materials to be used are already developed and updated and not as a result of this rule.^[12]

GSA assumes it will take 1 GSA accessibility SME on average, with a GS-14 step 5 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $93.70/hour, 2 hours in year 1 to review the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for year 1 to be $187 (= 1 × $93.70 GS-14 step 5 rate × 2 hours).

GSA assumes it will take 1 GSA accessibility SME on average, with a GS-14 step 5 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $93.70/hour, 0.5 hour in years 2 through 10 to review the updated Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 2 through 10 to be $47 (= 1 × $93.70 GS-14 step 5 rate × 0.5 hour).

GSA assumes it will take 1 GSA attorney on average, with a Senior Executive Level (SES) Level 3 (as presumed based on prior experiences by the SME in the National Accessibility Office of GSA) with an average hourly rate of $138.52/hour, 4 hours in year 1 to review the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for year 1 to be $554 (= 1 × $138.52 SES Level 3 rate × 4 hours).

GSA assumes it will take 1 GSA attorney on average, with an SES Level 3 with an average hourly rate of $138.52/hour, 1 hour in years 2 through 10 to review the updated Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content for new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 2 through 10 to be $139 (= 1 × $138.52 SES Level 3 rate × 1 hour).

GSA assumes it will take 2 Access Board employees on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 10 hours each in years 1 through 10 to deliver the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content to GSA new construction employees and alteration and renovation employees on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $1,586 (= 2 × $79.29 GS-13 step 5 rate × 10 hours).

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 5 hours each in years 1 through 10 to receive the Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way training content ^[13] on projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $79,290 (= 200 × $79.29 GS-13 step 5 rate × 5 hours).

A breakdown of undiscounted total annual estimated Government training costs by year is provided in the table below.

Year	1	2	3	4	5	6	7	8	9	10
Government wide Training	$81,617	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061

2. New Construction

New construction employees on projects where the Federal Government scope of work extends into the public right-of-way will need to conduct activities in compliance with the new standard. GSA anticipates additional construction costs will be incurred related to the accessibility requirements from this standard for applicable projects. Below is a list of compliance activities that GSA anticipates will occur.

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 1.5 hours each in years 1 through 10 to conduct an accessibility standards comparison review between state and local accessibility requirements and Federal accessibility requirements for federally owned and leased-to-own new construction projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $23,787 (= 200 × $79.29 GS-13 step 5 rate × 1.5 hours).

GSA assumes the additional construction cost that will be incurred related to the accessibility improvements from this standard for applicable projects by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Average construction costs are based on internal GSA historical data sources.

GSA assumes, based on recently completed projects of a similar nature within the last 10 years, 1 large-scale GSA facility project covered by ABA will be newly constructed every 5 years with an average construction cost of $300,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this rule to be 0.35 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 and 6 to be $1,050,000 (= $300,000,000 × 0.35 percent).

GSA assumes, based on recently completed projects of a similar nature within the last 10 years, 2 smaller-scale GSA facility projects covered by ABA will be newly constructed every year with an average construction cost of $45,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this standard to be 0.75 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $675,000 (= 2 × $45,000,000 × 0.75 percent).

Due to the lack of readily available data that identifies the new construction profile of other Federal agencies impacted by this rule, GSA extrapolated the burden to other Federal agencies impacted by this rule. Based on GSA's Federal Real Property Profile Management System (FRPP MS) data ^[14] GSA comprises 36 percent of civilian building square footage. Therefore, GSA assumes GSA comprises 36 percent of Federal agency new construction and other Federal agencies comprise the remaining 64 percent of Federal agency new construction. GSA calculates an estimated new construction ratio of other Federal agencies to GSA to be 2 (= 64 percent/36 percent).^[15] GSA assumes other Federal agencies impacted by this standard to have similar average construction costs.

GSA extrapolates, on average, that if GSA has 2 large-scale Federal facility projects covered by ABA newly constructed over a 10-year period, then by applying the ratio of 2, other Federal agencies will have an estimated 4 large-scale Federal facility projects covered by ABA newly constructed over a 10-year period. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $300,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 0.35 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1, 4, 7, and 10 to be $1,050,000 (= $300,000,000 × 0.35 percent).^[16]

GSA extrapolates, on average, that if GSA has 2 smaller-scale Federal facility projects covered by ABA newly constructed every year, then by applying the ratio of 2, other Federal agencies will have an estimated 4 smaller-scale Federal facility projects covered by ABA newly constructed every year. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $45,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 0.75 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $1,350,000 (= 4 × $45,000,000 × 0.75 percent).

A breakdown of the undiscounted total annual estimated cost by year is provided in the table below.^[17]

Year	1	2	3	4	5	6	7	8	9	10
Accessibility Standards Comparison Review	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787
GSA large-scale facilities	1,050,000					1,050,000
GSA smaller-scale facilities	675,000	675,000	675,000	675,000	675,000	675,000	675,000	675,000	675,000	675,000
Other Federal agency large-scale facilities	1,050,000			1,050,000			1,050,000			1,050,000
Other Federal agency smaller-scale facilities	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000	1,350,000
Total New Construction Costs	4,148,787	2,048,787	2,048,787	3,098,787	2,048,787	3,098,787	3,098,787	2,048,787	2,048,787	3,098,787

3. Alteration and Renovation

Alteration and renovation employees on projects where the government's scope of work is affected by the standard will need to conduct activities in compliance with the new standard. GSA anticipates additional construction costs will be incurred related to the accessibility requirements from this standard for applicable projects. Below is a list of compliance activities that GSA anticipates will occur.

GSA assumes it will take 200 Federal project managers and SMEs on average, with a GS-13 step 5 with an average hourly rate of $79.29/hour, 1.5 hours each in years 1 through 10 to conduct an accessibility standards comparison review between state and local accessibility requirements and Federal accessibility requirements for federally owned alteration and renovation projects where the standard applies. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 through 10 to be $23,787 (= 200 × $79.29 GS-13 step 5 rate × 1.5 hours).

GSA assumes the additional construction cost that will be incurred related to the accessibility improvements from this standard for applicable projects by multiplying the average construction costs by the accessibility improvements cost as a percentage of total construction cost. Average construction costs are based on internal GSA historical data sources.

GSA assumes, on average, 1 GSA alteration and renovation facility project covered by ABA will be constructed every 5 years with an average construction cost of $5,000,000. GSA estimates, based on recently completed projects of a similar nature within the last 10 years, on average, the additional construction costs related to the accessibility improvements from this rule to be 5 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1 and 6 to be $250,000 (= $5,000,000 × 5 percent).^[18]

Due to the lack of readily available data that identifies the alteration and renovation profile of other Federal agencies impacted by this rule, GSA extrapolated the burden to other Federal agencies impacted by this rule. To estimate the aggregate burden to other Federal agencies impacted by this rule, GSA assumes other Federal agencies impacted by this rule to have a similar alteration and renovation profile to GSA's. Based on GSA's FRPP MS data ^[19] GSA comprises 36 percent of civilian building square footage. Therefore, GSA assumes GSA comprises 36 percent of Federal agency alteration and renovation construction and other Federal agencies comprise the remaining 64 percent of Federal agency alteration and renovation construction. GSA calculates an estimated alteration and renovation construction ratio of other Federal agencies to GSA to be 2 (= 64 percent/36 percent).^[20] GSA assumes other Federal agencies impacted by this standard to have similar average construction costs.

GSA extrapolates, on average, that if GSA has 2 alteration and renovation Federal facility projects covered by ABA over a 10-year period, then by applying the ratio of 2, other Federal agencies will have an estimated 4 alteration and renovation Federal facility projects covered by ABA over a 10-year period. GSA assumes other Federal agencies impacted by this standard to have a similar average construction cost of $5,000,000 per project and a similar additional construction cost related to the accessibility improvements from this standard of 5 percent of the total construction cost. Therefore, GSA estimates the total annual estimated cost for this part of the rule for years 1, 4, 7, and 10 to be $250,000 (= $5,000,000 × 5 percent).^[21]

A breakdown of the undiscounted total annual estimated cost by year is provided in the table below.^[22]

Year	1	2	3	4	5	6	7	8	9	10
Accessibility Standards Comparison Review	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787	$23,787
GSA Alteration and Renovation	250,000					250,000
Other Federal agencies Alteration and Renovation	250,000			250,000			250,000			250,000
Total Alteration and Renovation Costs	523,787	23,787	23,787	273,787	23,787	273,787	273,787	23,787	23,787	273,787

4. Total Government Costs

A breakdown of undiscounted total estimated Government costs by year is provided in the table below.

Year	1	2	3	4	5	6	7	8	9	10
Government wide Training	$81,617	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061	$81,061
New Construction	4,148,787	2,048,787	2,048,787	3,098,787	2,048,787	3,098,787	3,098,787	2,048,787	2,048,787	3,098,787
Alteration and Renovation	523,787	23,787	23,787	273,787	23,787	273,787	273,787	23,787	23,787	273,787
Total Government Costs	4,754,191	2,153,635	2,153,635	3,453,635	2,153,635	3,453,635	3,453,635	2,153,635	2,153,635	3,453,635

5. Total Overall Costs

The discounted estimated total overall cost over a 10-year period is $25,163,860 at a 3 percent discount rate and $20,885,096 at a 7 percent discount rate, as there is no direct cost to the public under this rule. The following is a summary of the estimated costs calculated for a 10-year time horizon at a 3 and 7 percent discount rate:

Summary	Total costs
Present Value (3 percent)	$25,163,860
Annualized Costs (3 percent)	2,949,972
Present Value (7 percent)	20,885,096
Annualized Costs (7 percent)	2,973,568

Additional benefits that arise from GSA adopting the guidelines issued by the Access Board relate to safety and accessibility for pedestrians. Shortening travel distances from on-street parking to building entrances will enhance the accessibility of buildings for people with mobility-related disabilities while also being more efficient for everyone who uses street parking. It will also support the mobility of people with disabilities by increasing the sidewalk sizes and by regulating the ground slope at passenger loading zones to prevent them from being too steep. Wider sidewalks will increase the ease of maneuverability when passing people on the sidewalk and, thereby, reduce accidental collisions, as well as better accommodate mobility aids, such as, but not limited to, walkers, rollators, and both manual and electric wheelchairs. Further, requirements for better audio and tactile warning systems, including, but not limited to, audio signal warnings, truncated domes, and detectable warning pavers, will increase safety for some pedestrians with disabilities by alerting them to an imminent street crossing or to when they have the right-of-way to cross the street. These improvements also reduce anxiety for pedestrians when transitioning from a sidewalk to a street crosswalk.

In the Access Board final rule, section 7A, the Final Regulatory Impact Analysis, concluded that the rule, which covers state, local, and Federal public rights-of-way, would result in approximately $15.5 billion in annualized benefits compared to $196.7 million in annualized costs, using a 7% discounting rate.

6. Analysis of the Alternatives

The preferred process is the process laid out in the analysis above. However, GSA has analyzed two alternatives to the preferred process.

Alternative 1: GSA could decide to take no regulatory action. No action from the Government would prevent GSA from adopting the guidelines issued by the Access Board. The Government would not incur the additional costs associated with this final rule; however, the benefits of having a consistent Federal ABA standard for the accessibility of pedestrian facilities in the public right-of-way outweigh the costs. As a result, GSA rejected this alternative.

Alternative 2: GSA could adopt as an alternative more stringent accessibility standards. However, adopting more stringent accessibility standards would result in a higher cost than what is currently estimated. Multiple standards may also cause confusion as to the application of the Access Board's accessibility guidelines. As a result, GSA rejected this alternative.

III. Executive Orders 12866, 13563, and 14904

E.O. 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094, “Modernizing Regulatory Review” (88 FR 21879, April 11, 2023), amends section 3(f) of E.O. 12866 and supplements and reaffirms the principles, structures and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. The OMB Office of Information and Regulatory Affairs (OIRA) has determined that this rule is a significant regulatory action and, therefore, it was reviewed under subsection 6(b) of E.O. 12866.

IV. Congressional Review Act

OIRA has determined that this rule is not a “major rule” under 5 U.S.C. 804(2). Subtitle E of title II of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, unless excepted, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. This rule is excepted from CRA reporting requirements prescribed under 5 U.S.C. 801, as it relates to agency management or personnel under 5 U.S.C. 804(3)(B).

V. Regulatory Flexibility Act

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to agency management or personnel. This final rule is also exempt from the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because it applies to agency management or personnel. Therefore, a Final Regulatory Flexibility Analysis was not performed.

VI. Administrative Procedure Act

This rulemaking is exempt from the advance notice-and-comment and delayed-effective-date requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because this rulemaking relates to agency management or personnel or to public property, loans, grants, benefits, or contracts. This rulemaking applies to public property and how it relates to the public right-of-way so that the public property is accessible for persons with disabilities.

VII. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors or members of the public, that require the approval of OMB under 44 U.S.C. 3501 et seq.

VIII. Severability

GSA is proposing to add a new provision on severability at 41 CFR 102-76.125, which states that all provisions included in subpart C of part 102-76 are separate and severable from one another.

If any particular term or provision in subpart C of part 102-76, or the application thereof to any agency or circumstance, is determined by a court of competent jurisdiction to be invalid or unenforceable, the remaining terms or provisions, or the application of such term or provision to agencies or circumstances other than those to which it is invalid or unenforceable, will not be affected thereby, and each term and provision of this rule will be valid and be enforced to the fullest extent permitted by law. For example, if any provision relating to the Architectural Barriers Act Accessibility Standard for pedestrian facilities in the public right-of-way is determined to be invalid, the other provisions of the Architectural Barriers Act Accessibility Standard, including the standards for pedestrian facilities, would remain in full force and effect.

Further, any cross-references that appear throughout subpart C of part 102-76 are duplicative and are intended only to make the regulations more user-friendly. Invalidation of a particular provision that is cross-referenced elsewhere will not materially alter the provision that contains the cross-reference.

In summary, removal of any particular provision from subpart C of part 102-76 would not render the entire regulatory scheme unworkable. Thus, GSA considers each of the provisions in subpart C of part 102-76 to be separate and severable from one another. In the event of a stay or invalidation of any particular provision, it is GSA's intention that the remaining provisions will continue in effect.

List of Subjects in 41 CFR Part 102-76

• Energy conservation
• Federal buildings and facilities
• Government property management
• Individuals with disabilities
• Rates and fares
• Security measures

Robin Carnahan,

Administrator of General Services.

For the reasons set forth in the preamble, GSA amends 41 CFR part 102-76 as set forth below:

PART 102-76—DESIGN AND CONSTRUCTION

1. The authority citation for part 102-76 is revised to read as follows:

Authority: 40 U.S.C. 121(c) (in furtherance of the Administrator's authorities under 40 U.S.C. 3301-3315 and elsewhere as included under 40 U.S.C. 581 and 583); 42 U.S.C. 4152.

2. Add an undesignated center heading and §§ 102-76.100 through 102-76.125 to subpart C to read as follows:

Subpart C—Architectural Barriers Act

* * * * *

Public Rights-of-Way

102-76.100

What definition applies to this part?

102-76.105

What standard must public rights-of-way subject to the Architectural Barriers Act and covered under § 102-76.65(a) meet?

102-76.110

Where pedestrian facilities subject to the standard in § 102-76.105(a) are altered, must an alteration to a pedestrian facility be connected by a compliant pedestrian access route to an existing pedestrian circulation path?

102-76.115

Who has the authority to waive or modify the standards in § 102-76.105(a)?

102-76.120

What recordkeeping responsibilities do Federal agencies have?

102-76.125

What portions of this subpart are severable?

* * * * *

Public Rights-of-Way

§ 102-76.100

What definition applies to this part?

Public right-of-way means public land acquired for or dedicated to transportation purposes, or other land where there is a legally established right for use by the public for transportation purposes.

§ 102-76.105

What standard must public rights-of-way subject to the Architectural Barriers Act and covered under § 102-76.65(a) meet?

(a) GSA adopts the appendix to 36 CFR part 1190 without additions or modification as the accessibility standard for pedestrian facilities in the public right-of-way. Pedestrian facilities in the public right-of-way subject to the Architectural Barriers Act (other than facilities in paragraphs (b) and (c) of this section) must meet the accessibility standard for pedestrian facilities in the public right-of-way so that pedestrian facilities located in the public right-of-way are readily accessible to and usable by pedestrians with disabilities. Compliance with this accessibility standard is mandatory; provided, however, that this standard does not address existing pedestrian facilities in the public right-of-way under the Architectural Barriers Act unless the pedestrian facilities are altered at the discretion of a covered entity.

(b) Residential public rights-of-way subject to the Architectural Barriers Act must meet the standards prescribed by the Department of Housing and Urban Development.

(c) Department of Defense and United States Postal Service public rights-of-way subject to the Architectural Barriers Act must meet the standards prescribed by those agencies.

§ 102-76.110

Where pedestrian facilities subject to the standard in § 102-76.105(a) are altered, must an alteration to a pedestrian facility be connected by a compliant pedestrian access route to an existing pedestrian circulation path?

Yes, pedestrian facilities in public rights-of-way subject to the standard in § 102-76.105(a) that are altered must always be connected by a compliant pedestrian access route to an existing pedestrian circulation path.

§ 102-76.115

Who has the authority to waive or modify the standards in § 102-76.105(a)?

The Administrator of General Services has the authority to waive or modify the accessibility standards for buildings and facilities covered by the Architectural Barriers Act (ABA) in § 102-76.105(a) on a case-by-case basis if an agency head or a GSA department head submits a request for waiver or modification and the Administrator determines that the waiver or modification is clearly necessary. The Administrator of General Services must consult with the Access Board to ensure that the waiver or modification is based on findings of fact and not inconsistent with the ABA.

§ 102-76.120

What recordkeeping responsibilities do Federal agencies have?

(a) The head of each Federal agency must ensure that documentation is maintained on each contract, grant or loan for the design, construction, or alteration of a pedestrian facility in a public right-of-way subject to the standard in § 102-76.105(a) containing one of the following statements:

(1) The standard has been or will be incorporated in the design, the construction, or the alteration.

(2) The grant or loan has been or will be made subject to a requirement that the standard will be incorporated in the design, the construction, or the alteration.

(3) The standard has been waived or modified by the Administrator of General Services, and a copy of the waiver or modification is included with the statement.

(b) If a determination is made that a pedestrian facility in a public right-of-way is not subject to the standard in § 102-76.105(a) because the Architectural Barriers Act does not apply to the facility, the head of the Federal agency must ensure that documentation is maintained to justify the determination.

§ 102-76.125

What portions of this subpart are severable?

All provisions included in this subpart are separate and severable from one another. If any provision is stayed or determined to be invalid, it is GSA's intention that the remaining provisions will continue in effect.

Footnotes

1.  88 FR 53604, August 8, 2023 ( https://www.federalregister.gov/​documents/​2023/​08/​08/​2023-16149/​accessibility-guidelines-for-pedestrian-facilities-in-the-public-right-of-way).

2.  See 36 CFR part 1190, appendix, section R104.3 (definition of “public right-of-way”).

3.   https://www.gsa.gov/​system/​files/​GSA_​Strategic_​Plan_​FY_​2022_​-_​2026_​FINAL_​508.pdf.

4.   https://www.whitehouse.gov/​briefing-room/​presidential-actions/​2021/​01/​20/​executive-order-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/​.

5.   https://www.whitehouse.gov/​briefing-room/​presidential-actions/​2021/​06/​25/​executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/​.

6.   https://www.whitehouse.gov/​briefing-room/​presidential-actions/​2023/​02/​16/​executive-order-on-further-advancing-racial-equity-and-support-for-underserved-communities-through-the-federal-government/​.

7.  Computing Hourly Rates of Pay Using the 2,087-Hour Divisor ( https://www.opm.gov/​policy-data-oversight/​pay-leave/​pay-administration/​fact-sheets/​computing-hourly-rates-of-pay-using-the-2087-hour-divisor/​).

8.  General Schedule ( https://www.opm.gov/​policy-data-oversight/​pay-leave/​salaries-wages/​2023/​general-schedule).

9.  OMB Memo M-08-13, dated March 11, 2008 ( https://www.whitehouse.gov/​wp-content/​uploads/​legacy_​drupal_​files/​omb/​memoranda/​2008/​m08-13.pdf).

10.  OMB Circular A-76 ( https://georgewbush-whitehouse.archives.gov/​omb/​circulars/​a076/​a76_​incl_​tech_​correction.html).

11.  GSA makes these assumptions based on historical familiarization hours and SME judgment.

12.  The ABA guidelines are nearly identical to the ADA guidelines, which are already developed and updated and based on historical familiarization SME judgment. GSA assumes the ADA training materials will be used for ABA guidelines familiarization.

13.  GSA makes these assumptions based on the Access Board's historical familiarization hours and SME judgment.

14.  GSA used the Fiscal Year 2023 FRPP Summary Data Set at https://www.gsa.gov/​policy-regulations/​policy/​real-property-policy-division-overview/​data-collection-and-reports/​frpp-summary-report-library.

15.  This ratio is rounded to the nearest whole number.

16.  GSA assumes the estimated total number of projects to be spread evenly over the 10-year period.

17.  Costs in this table are presented in undiscounted and constant dollars.

18.  This information is based on internal GSA historical data sources.

19.  GSA used the Fiscal Year 2023 FRPP Summary Data Set at https://www.gsa.gov/​policy-regulations/​policy/​real-property-policy-division-overview/​data-collection-and-reports/​frpp-summary-report-library.

20.  This ratio is rounded to the nearest whole number.

21.  GSA assumes the estimated total number of projects to be spread evenly over the 10-year period.

22.  Costs in this table are presented in undiscounted and constant dollars.