Americans With Disabilities Act Accessibility Guidelines; Detectable Warnings

SUMMARY: The Architectural and Transportation Barriers Compliance Board

(Access Board), the Department of Justice, and the Department of

Transportation are continuing the suspension of the requirements for

detectable warnings at curb ramps, hazardous vehicular areas, and

reflecting pool edges in the Americans with Disabilities Act

Accessibility Guidelines (ADAAG) and the Standards for Accessible

Design. The Access Board plans to issue a separate notice of proposed

rulemaking to revise and update ADAAG and will address detectable

warnings in that rulemaking. The Department of Justice and the

Department of Transportation will issue separate notices of proposed

rulemaking to revise and update the Standards for Accessible Design,

which must be consistent with ADAAG. The agencies are continuing the

suspension of the detectable warning requirements to July 26, 2001,

when it is expected that the rulemakings to revise and update ADAAG and

the Standards for Accessible Design will be completed.

EFFECTIVE DATE: December 23, 1998.

FOR FURTHER INFORMATION CONTACT: Access Board: James J. Raggio, General

Counsel, Architectural and Transportation Barriers Compliance Board,

1331 F Street, NW., suite 1000, Washington, DC 20004-1111. Telephone

(202) 272-5434 extension 16 or (800) 872-2253 extension 16 (voice), and

(202) 272-5449 (TTY) or (800) 993-2822 (TTY).

Department of Justice: John L. Wodatch, The ADA Information Line,

Disability Rights Section, Civil Rights Division, U.S. Department of

Justice, Washington DC 20530. Telephone (800) 514-0301 (voice) or (800)

514-0383 (TTY).

Department of Transportation: Robert C. Ashby, Deputy Assistant

General Counsel for Regulation and Enforcement, Department of

Transportation, 400 7th Street, SW., room 10424, Washington, DC 20590.

Telephone (202) 366-9306 (voice) or (202) 755-7687 (TTY).

SUPPLEMENTARY INFORMATION:

Availability of Copies and Electronic Access

Copies of this final rule are available in the following formats:

standard print, large print, Braille, audio cassette tape, and computer

disk. Single copies may be obtained at no cost by calling the Access

Board's automated publications order line (202) 272-5434 or (800) 872-

2253, pressing 1 on the telephone keypad, then 1 again, and requesting

publication S40 (Detectable Warnings Final Rule). Persons using a TTY

should call (202) 272-5449 or (800) 993-2822. Please provide your name,

address, and telephone number when ordering publications. Persons who

want a copy in large print, Braille, audio cassette tape, or computer

disk should specify the type of format they want.

The final rule is available on the Access Board's web site (http://

www.access-board.gov/rules/dw.htm), the Department of Justice's web

site (http://www.usdoj.gov/crt/ada/adahom1.htm), and the Department of

Transportation's web site (http://dms.dot.gov). The final rule is also

available on electronic bulletin board at (202) 514-6193 (Department of

Justice). This telephone number is not toll-free.

Background

On June 1, 1998, the Access Board, the Department of Justice, and

the Department of Transportation published a joint notice of proposed

rulemaking (NPRM) to continue the suspension of the requirements for

detectable warnings at certain locations within sites in ADAAG and the

Standards for Accessible Design from July 26, 1998 to July 26, 2000.\1\

63 FR 29924. The suspension applies to detectable warning requirements

at curb ramps (4.7.7), hazardous vehicular areas (4.29.5), and

reflecting pool edges (4.29.6). The suspension does not affect

detectable warning requirements at platform edges in transportation

facilities (10.3.1(8)).

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\1\ The Access Board is responsible for issuing guidelines to

assist the Department of Justice and the Department of

Transportation in establishing accessibility standards for newly

constructed and altered facilities under the Americans with

Disabilities Act. In 1991, the Access Board issued the Americans

with Disabilities Act Accessibility Guidelines, which is commonly

referred to as ADAAG. 36 CFR part 1191, appendix A. The Department

of Justice and the Department of Transportation have adopted

sections 1 through 10 of ADAAG as the Standards for Accessible

Design for the Americans with Disabilities Act. 28 CFR part 36,

appendix A; 49 CFR part 37, appendix A.

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As explained in the NPRM, the detectable warning requirements were

suspended initially in 1994, pending review of a research project on

the need for detectable warnings at vehicular-pedestrian intersections

in the public right-of-way. 59 FR 17442 (April 12, 1994). The research

project showed that vehicular-pedestrian intersections are very complex

environments and that pedestrians who are blind or visually impaired

use a combination of cues to detect intersections. The research project

found that detectable warnings helped some pedestrians who are blind or

visually impaired locate and identify curb ramps. However, the

detectable warnings had only a modest impact on overall performance

because, in their absence, pedestrians who are blind or visually

impaired used other cues that might be available to detect the

intersection. The research project indicated that there may be a need

for additional cues at some types of intersections. The research

project did not identify the specific conditions where such cues should

be provided. The research project suggested that other technologies,

which may be less costly and equally or more effective than detectable

warnings, be explored for providing information about intersections.

The Access Board subsequently established an advisory committee to

conduct a comprehensive review of ADAAG and make recommendations for

revising and updating the guidelines. The suspension of the detectable

warning requirements was continued in 1996, pending review of the

advisory committee's recommendations. 61 FR 39323 (July 29, 1996). The

advisory committee recommended that the detectable warning requirements

at platform edges in transportation facilities be retained and that

equivalent tactile surfaces or other means be permitted to provide

equivalent detectability of platform edges. The advisory committee did

not make any recommendations regarding detectable warnings at other

locations within a site. The advisory committee suggested that the

appropriateness of providing

[[Page 64837]]

detectable warnings at vehicular-pedestrian intersections in the public

right-of-way should be established first, and the application to other

locations within a site should be considered afterwards.

The Access Board is preparing an NPRM to revise and update ADAAG

based on the advisory committee's recommendations, as well as research

and other available information, and will address provisions for

detectable warnings within sites in that NPRM. The Department of

Justice and the Department of Transportation will issue separate NPRMs

to revise and update the Standards for Accessible Design, which must be

consistent with ADAAG. In the NPRM announcing the continuation of the

suspension of the detectable warning requirements, the agencies noted

that the rulemakings to revise and update ADAAG and the Standards for

Accessible Design were expected to be completed by July 26, 2000, and

the agencies proposed to continue the suspension through that date. The

Access Board is also preparing an NPRM to revise and update the

guidelines for the Architectural Barriers Act, which requires certain

federally financed facilities to be accessible. The Access Board has

recently decided to combine the rulemakings to update and revise ADAAG

and the guidelines for the Architectural Barriers Act and to include

provisions for housing in the rulemakings. This action is expected to

extend the rulemakings for six to twelve months.

Three comments were received in response to the NPRM. One commenter

expressed concern about the amount of time it is taking to revise and

update ADAAG and the Standards for Accessible Design, and the resulting

delay in addressing detectable warnings. The rulemaking process can be

lengthy, especially when revising and updating major rules like ADAAG

and the Standards for Accessible Design. There are many important

issues that will be addressed in these rulemakings. It would not be

efficient to address each issue through separate rulemakings. Another

commenter identified himself as an individual who is blind and

recommended that detectable warnings should be required at the

locations covered by the suspension. When detectable warning provisions

were initially proposed in ADAAG, a large number of individuals who are

blind commented on the proposal. There was no consensus among the group

regarding detectable warnings. The agencies expect to receive many

comments on detectable warnings when the NPRMs to revise and update

ADAAG and the Standards for Accessible Design are issued and will

consider all the comments before issuing final rules.

The other commenter recommended that the Access Board issue

guidelines addressing public sidewalks and street crossings. The Access

Board issued proposed and interim guidelines addressing public rights-

of-way in 1992 and 1994. 57 FR 60612 (December 21, 1992); 59 FR 31676

(June 20, 1994). The Access Board received a large number of comments

on the guidelines from public works agencies, transportation

departments, and traffic consultants. The comments showed a disparate

understanding of pedestrian accessibility criteria generally and the

application of the guidelines in particular. Based on the comments, the

Access Board decided to reserve the guidelines in favor of working with

other governmental and private sector organizations in the

transportation industry to promote the incorporation of pedestrian

accessibility criteria into industry guidelines, standards, and

recommended practices. 63 FR 2000 (January 13, 1998). The Access Board

periodically reviews its rulemaking agenda and will evaluate the impact

of its efforts in this area and whether further rulemaking is

warranted.

As explained earlier, the Access Board, the Department of Justice,

and the Department of Transportation will address the provisions for

detectable warnings within sites in the rulemakings to update and

revise ADAAG and the Standards for Accessible Design. Continuing the

suspension of the requirements for detectable warnings at certain

locations within sites to July 26, 2001 will maintain the status-quo

until the planned rulemakings are completed.

Regulatory Process Matters

The Access Board, the Department of Justice, and the Department of

Transportation have independently determined that this final rule is

not a significant regulatory action under Executive Order 12866. It is

not a significant rule under the Department of Transportation's

regulatory policies and procedures. The Department of Transportation

expects the economic impacts to be minimal and has not prepared a full

regulatory evaluation.

The Access Board, the Department of Justice, and the Department of

Transportation also independently certify under section 605(b) of the

Regulatory Flexibility Act that this final rule is not expected to have

a significant economic impact on a substantial number of small entities

because it continues the suspension of an existing regulatory

requirement and does not impose any new requirement.

The Unfunded Mandates Reform Act does not apply to proposed or

final rules that enforce constitutional rights of individuals or

establish or enforce any statutory rights that prohibit discrimination

on the basis of race, color, religion, sex, national origin, age,

handicap, or disability. Since the final rule is issued under the

authority of the Americans with Disabilities Act, an assessment of the

rule's effects on State, local, and tribal governments, and the private

sector is not required by the Unfunded Mandates Reform Act.

Text of Final Common Rule

The text of the common rule is revised to read as follows:

Sec. ______. ______ Temporary suspension of certain detectable warning

requirements.

The detectable warning requirements contained in sections 4.7.7,

4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily

until July 26, 2001.

Adoption of Final Common Rule

The agency specific proposals to adopt the final common rule, which

appears at the end of the common preamble, are set forth below.

DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 36

List of Subjects in 28 CFR Part 36

Administrative practice and procedure, Alcoholism, Buildings and

facilities, Business and industry, Civil rights, Consumer protection,

Drug abuse, Historic preservation, HIV/AIDS, Individuals with

disabilities, Penalties, Reporting and recordkeeping requirements,

Transportation.

Authority and Issuance

By the authority vested in me as Attorney General by 28 U.S.C. 509,

510; 5 U.S.C. 301; and 42 U.S.C. 12186, and for the reasons set forth

in the common preamble, part 36 of chapter I of title 28 of the Code of

Federal Regulations is amended as follows:

PART 36--NONDISCRIMINATION ON THE BASIS OF DISABILITY BY PUBLIC

ACCOMMODATIONS AND IN COMMERCIAL FACILITIES

1. The authority citation for 28 CFR part 36 continues to read as

follows:

Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; 42 U.S.C. 12186(b).

[[Page 64838]]

Sec. 36.407 [Revised]

2. Section 36.407 is revised to read as set forth at the end of the

common preamble.

Dated: November 2, 1998.

Janet Reno,

Attorney General.

ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD

36 CFR Part 1191

List of Subjects in 36 CFR Part 1191

Buildings and facilities, Civil rights, Individuals with

disabilities, Transportation.

Authority and Issuance

For the reasons set forth in the common preamble, part 1191 of

title 36 of the Code of Federal Regulations is amended as follows:

PART 1191--AMERICANS WITH DISABILITIES ACT (ADA) ACCESSIBILITY

GUIDELINES FOR BUILDINGS AND FACILITIES

1. The authority citation for 36 CFR part 1191 continues to read as

follows:

Authority: 42 U.S.C. 12204.

Sec. 1191.2 [Revised]

2. Section 1191.2 is revised to read as set forth at the end of the

common preamble.

Authorized by vote of the Access Board on July 15, 1998.

Thurman M. Davis,

Chair, Architectural and Transportation Barriers Compliance Board.

DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 37

List of Subjects in 49 CFR Part 37

Buildings and facilities, Buses, Civil rights, Individuals with

disabilities, Mass transportation, Railroads, Reporting and

recordkeeping requirements, Transportation.

Authority and Issuance

For the reasons set forth in the common preamble, part 37 of title

49 of the Code of Federal Regulations is amended as follows:

PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES

(ADA)

1. The authority citation for 49 CFR part 37 continues to read as

follows:

Authority: 42 U.S.C. 12101-12213; 49 U.S.C. 322.

Sec. 37.15 [Revised]

2. Section 37.15 is revised to read as set forth at the end of the

common preamble.

Rodney E. Slater,

Secretary of Transportation.

[FR Doc. 98-31254 Filed 11-20-98; 8:45 am]

BILLING CODE 4410-13-P, 8150-01-P, 4910-62-P