Nondiscrimination on the Basis of Disability in State and Local Government Services

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]

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