Americans With Disabilities Act Accessibility Guidelines; Detectable Warnings, Extension of Suspension 11-23-98

[Federal Register: November 23, 1998 (Volume 63, Number 225)]
[Rules and Regulations]               
[Page 64835-64838]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23no98-26]
 [[Page 64835]]
 ______________________________________________________________________
 Part IX
 Department of Justice
 Architectural and Transportation Barriers Compliance Board
 Department of Transportation
______________________________________________________________________
 28 CFR Part 36
 36 CFR Part 1191
 49 CFR Part 37
 Americans With Disabilities Act Accessibility Guidelines; Detectable 
Warnings; Joint Final Rule
 [[Page 64836]]
 DEPARTMENT OF JUSTICE
 Office of the Attorney General
 28 CFR Part 36
 [A.G. Order No. 2191-98]
 ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
 36 CFR Part 1191
 RIN 3014--AA24
 DEPARTMENT OF TRANSPORTATION
 Office of the Secretary
 49 CFR Part 37
 Americans With Disabilities Act Accessibility Guidelines; 
Detectable Warnings
 AGENCIES: Architectural and Transportation Barriers Compliance Board, 
Department of Justice, and Department of Transportation.
 
ACTION: Joint final rule.
 
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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