[Federal Register Volume 60, Number 227 (Monday, November 27, 1995)]
[Proposed Rules]
[Pages 58462-58465]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28679]




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Part VI





Department of Justice





_______________________________________________________________________



Office of the Attorney General



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28 CFR Part 35



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

  Federal Register / Vol. 60, No. 227 / Monday, November 27, 1995 / 
Proposed Rules  

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DEPARTMENT OF JUSTICE

Office of the Attorney General

28 CFR Part 35

[Order No. 1999-95]


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

agency: Department of Justice.

action: Proposed rule.

-----------------------------------------------------------------------

summary: This proposed rule would amend the Department of Justice 
regulation implementing Title II of the Americans with Disabilities Act 
to clarify the requirement for installation of curb ramps at existing 
pedestrian walkways. The proposal would extend the time period for 
compliance to January 26, 2000, for curb ramps serving State and local 
government facilities, transportation, places of public accommodation, 
other places of employment, and at the residences of individuals with 
disabilities. It would extend the time period for providing curb ramps 
at existing pedestrian walkways in other areas until January 26, 2005, 
and it would require public entities to include a schedule for the 
implementation of these requirements in their transition plans.

dates: To be assured of consideration, comments must be in writing and 
must be received on or before January 26, 1996. Comments that are 
received after the closing date will be considered to the extent 
practicable.

addresses: Comments on this proposed rule should be sent to: John L. 
Wodatch, Chief, Disability Rights Section, Civil Rights Division, U.S. 
Department of Justice, Rulemaking Docket 007, P.O. Box 65485, 
Washington, DC 20035.
    Comments may also be sent to the Civil Rights Division via the 
Internet. Comments should be addressed to: 
[email protected]. If your comment is transmitted in a 
word processing file, please specify the format. Flat ASCII files are 
preferred.
    Comments submitted to the Department of Justice will be available 
for inspection in the offices of the Disability Rights Section, 1425 
New York Avenue NW., Washington, DC from 9:00 a.m. to 5:00 p.m., Monday 
through Friday, except legal holidays from December 13, 1995, until the 
Department publishes the rule in final form. Persons who need 
assistance to review the comments will be provided with appropriate 
aids such as readers or magnification devices.
    To be included in the record of this rulemaking, comments must 
include the name and address of the commenter. Commenters who choose to 
transmit their comments via the Internet should include their name and 
address in the text of the comment. Electronically transmitted comments 
that identify the commenter by screen name only will not be included in 
the record.

for further information contact: Janet Blizard, (202) 307-0663. The ADA 
Information Line, Disability Rights Section, Civil Rights Division, 
U.S. Department of Justice, Washington, DC 20530, (800) 514-0301 
(voice), (800) 514-0383 (TDD). These telephone numbers are toll-free 
numbers.

SUPPLEMENTARY INFORMATION:

Availability of Accessible Format

    Copies of this rule are available in the following accessible 
formats: large print, Braille, electronic file on computer disk, and 
audio-tape. Copies may be obtained from the Disability Rights Section 
at the telephone numbers listed above. The rule is also available on 
the Civil Rights Division's electronic bulletin board at (202) 514-
6193. This telephone number is not a toll-free number. The rule is also 
available on the Internet. It can be accessed with gopher client 
software (gopher.usdoj.gov), through other gopher servers using the 
University of Minnesota master gopher (under North America, USA, All, 
Department of Justice), with World Wide Web software (http://
www.usdoj.gov), or through the White House WWW server (http://
www.whitehouse.gov).

Background

    The Department of Justice's (Department) regulation implementing 
title II of the Americans with Disabilities Act of 1990, Pub. L. 101-
336, 42 U.S.C. 12131-12134 (ADA), provides that a public entity may not 
deny the benefits of its programs, activities, and services to 
individuals with disabilities because its facilities are inaccessible. 
28 CFR 35.149. Under this regulation, maintenance of pedestrian 
walkways by public entities is a covered program that is required to be 
made accessible by the installation of curb ramps where pedestrian 
walkways cross curbs. Because of the unique and significant capital 
expenses involved in the installation of curb ramps where existing 
pedestrian routes cross curbs, Senators Bob Dole, Tom Harkin, Orrin 
Hatch, Edward Kennedy, and John McCain, who were among the principal 
Senate sponsors of the ADA, have asked the Department to amend the 
title II regulation to provide additional time for public entities to 
meet their obligation to provide access to public pedestrian walkways. 
The Department considers the suggested extension to be a reasonable and 
appropriate modification and accordingly is issuing this proposed rule.
    On July 26, 1991, the Department published its final rule 
implementing subtitle A of title II of the ADA. 56 FR 35694. This 
regulation was codified at 28 CFR Part 35. Subtitle A of title II 
protects qualified individuals with disabilities from discrimination on 
the basis of disability in the services, programs, or activities of all 
covered public entities. It extends the prohibition of discrimination 
established by section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 
794, to all activities of State and local governments, including those 
that do not receive federal financial assistance, and incorporates 
specific prohibitions of discrimination on the basis of disability from 
titles I, III, and V of the ADA.
    This proposed rule would revise the program accessibility 
requirements currently published at 28 CFR 35.150 to incorporate 
specific guidance with respect to the installation of curb ramps at 
intersections that are not otherwise being altered. This proposed rule 
would not affect the requirements of 28 CFR 35.151(e), which requires 
that if walkways are provided, curb ramps or other sloped areas must be 
installed at all newly constructed or altered streets, roads, highways, 
and street-level pedestrian walkways. Thus, the ADA would continue to 
require that, whenever a State or local government puts in a new street 
or alters an existing street, it must also construct curb ramps at any 
intersection that has curbs that bar entry from a pedestrian walkway.
    This proposed rule is distinct from the Department's June 20, 1994 
(59 FR 31808) proposal to amend 28 CFR 35.151. The Department's June 
1994 proposal would adopt, as the ADA Standards for Accessible Design, 
the ADA Accessibility Guidelines for Buildings and Facilities, revised 
and published in an interim final rule of the same date by the 
Architectural and Transportation Barriers Compliance Board (Access 
Board). Comments on the Department's proposed rule and the Access 
Board's interim final rule are now being considered. This proposal to 
amend 28 CFR 35.150 does not affect the Department's June 20, 1994, 
notice of proposed rulemaking or the Access Board's interim final rule.

Program Accessibility

    Title II of the ADA prohibits discrimination on the basis of 
disability in any of the services, programs, or activities of a covered 
public entity. 

[[Page 58463]]
Subpart D of the title II regulation, Program Accessibility, provides 
that a public entity may not deny the benefits of its programs, 
activities, and services to individuals with disabilities because its 
facilities are inaccessible. A public entity's services, programs, or 
activities, when viewed in their entirety, must be readily accessible 
to and usable by individuals with disabilities. This standard, known as 
``program accessibility,'' applies to all programs operated in existing 
facilities by a public entity. Public entities, however, are not 
necessarily required to make each of their existing facilities 
accessible.
    In addition, a public entity does not have to take any action that 
it can demonstrate would result in a fundamental alteration in the 
nature of its program or activity or in undue financial and 
administrative burdens. This determination can only be made by the head 
of the public entity or his or her designee and must be accompanied by 
a written statement of the reasons for reaching that conclusion. The 
determination that undue burdens would result must be based on all 
resources available for use in the program. If an action would result 
in such an alteration or such burdens, the public entity must take any 
other action that would not result in such an alteration or such 
burdens but would nevertheless ensure that individuals with 
disabilities receive the benefits and services of the program or 
activity.
    Installation of curb ramps to provide access to existing pedestrian 
walkways on existing streets that are not otherwise being altered may 
be necessary in order to provide access to the ``program'' of using 
public streets and walkways. As explained in the preamble to the final 
title II regulation--

    The legislative history of title II of the ADA makes it clear 
that, under title II, ``local and state governments are required to 
provide curb cuts on public streets.'' Education and Labor report at 
84. As the rationale for the provision of curb cuts, the House 
report explains, ``The employment, transportation, and public 
accommodation sections of * * * [the ADA] would be meaningless if 
people who use wheelchairs were not afforded the opportunity to 
travel on and between the streets.'' Id. Section 35.151(e), which 
establishes accessibility requirements for new construction and 
alterations, requires that all newly constructed or altered streets, 
roads, or highways must contain curb ramps or other sloped areas at 
any intersection having curbs or other barriers to entry from a 
street level pedestrian walkway, and all newly constructed or 
altered street level pedestrian walkways must have curb ramps or 
other sloped areas at intersections to streets, roads, or highways. 
A new paragraph (d)(2) has been added to the final rule to clarify 
the application of the general requirement for program accessibility 
to the provision of curb cuts at existing crosswalks. This paragraph 
requires that the transition plan include a schedule for providing 
curb ramps or other sloped areas at existing pedestrian walkways, 
giving priority to walkways serving entities covered by the Act, 
including State and local government offices and facilities, 
transportation, public accommodations, and employers, followed by 
walkways serving other areas. Pedestrian ``walkways'' include 
locations where access is required for use of public transportation, 
such as bus stops that are not located at intersections or 
crosswalks.

56 FR 35710.

    The Department further explained the application of the concept of 
program accessibility in its Title II Technical Assistance Manual, 
which advises that:

    Public entities that have responsibility or authority over 
streets, roads, or walkways must prepare a schedule for providing 
curb ramps where pedestrian walkways cross curbs. Public entities 
must give priority to walkways serving State and local government 
offices and facilities, transportation, places of public 
accommodation, and employees, followed by walkways serving other 
areas. This schedule must be included as part of a transition plan. 
* * *
    To promote both efficiency and accessibility, public entities 
may choose to construct curb ramps at every point where a pedestrian 
walkway intersects a curb. However, public entities are not 
necessarily required to construct a curb ramp at every such 
intersection.
    Alternative routes to buildings that make use of existing curb 
cuts may be acceptable under the concept of program accessibility in 
the limited circumstances where individuals with disabilities need 
only travel a marginally longer route. In addition, the fundamental 
alteration and undue burdens limitations may limit the number of 
curb ramps required.
    To achieve or maintain program accessibility, it may be 
appropriate to establish an ongoing procedure for installing curb 
ramps upon request in areas frequented by individuals with 
disabilities as residents, employees, or visitors.

Section II-5.3000.

    The title II regulation requires public entities to achieve program 
accessibility by January 26, 1992. Where structural changes to existing 
facilities are required to provide program accessibility, section 
35.150(c) provides that such structural changes must be made as 
expeditiously as possible, but in no event later than January 26, 1995, 
unless the public entity can demonstrate that meeting this deadline 
would result in a fundamental alteration of its program or would impose 
undue financial and administrative burdens.
    This proposed amendment responds to concern expressed by Senators 
Dole, Harkin, Hatch, Kennedy, and McCain that the requirement to 
provide program accessibility to existing intersections by installing 
curb ramps requires structural alterations to a substantial portion of 
the existing infrastructure of most cities, and imposes an obligation 
that many jurisdictions were unable to meet by January 26, 1995. After 
due consideration, the Department has concluded that modification of 
the regulation to permit additional time for public entities to achieve 
compliance is appropriate. This proposed rule would therefore revise 28 
CFR 35.150(c) to extend to January 26, 2000, the time period for 
compliance with the requirements for structural alterations to provide 
curb ramps in pedestrian walkways to provide access to State and local 
government facilities, transportation, places of public accommodation, 
other places of employment, and the residences of individuals with 
disabilities. The proposed rule would extend the deadline for providing 
access to existing pedestrian walkways in other residential and non-
commercial areas to January 26, 2005. It is the Department's hope that 
this extension will provide the additional flexibility necessary for 
State and local governments to comply with the ADA in light of strained 
fiscal resources, and that it will actually increase the number of curb 
ramps that will be installed on this nation's streets.
    The Department seeks comments from State and local governments on 
the difficulties caused by the present deadline for curb ramps. While 
anecdotal evidence is useful, the Department would like to receive 
comprehensive information about the fiscal impact of the curb ramp 
requirement on the budgets of State and local governments, including 
the cost of installing curb ramps on existing pedestrian walkways, the 
number of curb ramps installed, the number of curb ramps that are 
planned to be added, and the amount of funds used for this requirement, 
both in terms of gross numbers and percentage of the State or local 
government budget.
    The Department also requests information from people with 
disabilities and the organizations that represent them on the effect 
that this proposal will have on their ability to travel in their 
communities. We would profit from hearing specific, detailed reports, 
rather than generalized statements.
    This proposed rule would require public entities to ensure that 
providing curb ramps serving the residences of individuals with 
disabilities shall be given priority over the installation of curb 
ramps in other residential or non-

[[Page 58464]]
commercial areas by requiring the former category of curb ramps to be 
installed by January 26, 2000. After that date, if a public entity 
receives a request from an individual with a disability for a curb ramp 
serving that individual's residence, installing a curb ramp in response 
to that request should take precedence over the installation of other 
curb ramps serving residential or non-commercial areas.
    It has been suggested that this proposed rule should require public 
entities to establish a formal process through which individuals with 
disabilities may request the installation of curb ramps at pedestrian 
walkways serving their residences, and should further require that curb 
ramps requested through this process be installed within one year of 
the request. This would represent a significant change from the 
Department's current policy, which recommends, but does not require, 
the development of a request procedure, and does not require the 
installation of curb ramps at the residences of individuals with 
disabilities to be given priority over the installation of curb ramps 
serving public and commercial facilities.
    The Department recognizes that it may be beneficial to individuals 
with disabilities to be assured that they will be able to have curb 
ramps installed in the public pedestrian routes serving their 
residences. However, the Department is concerned, given the limitations 
on available public funds, that the imposition of a requirement to 
provide curb ramps at private residences within a year of a request may 
inhibit the ability of a public entity to give priority to installing 
curb ramps on more heavily traveled routes serving public and 
commercial facilities.
    The Department is specifically seeking public comment on this issue 
to assist us in determining whether the installation of curb ramps at 
private residences should be given priority over the installation of 
curb ramps in public and commercial areas. The Department also invites 
recommendations about ways in which such a process could be implemented 
fairly and efficiently.
    Concern has been expressed about the possible effect of this rule 
on the usability of transportation systems because bus stops may lack 
curb ramps for a longer period of time. It is feared that a lack of 
accessible municipal bus stops may defeat transportation providers' 
efforts to make their systems accessible. The Department is 
specifically seeking comments regarding the impact of this rule on such 
systems and suggestions regarding how to address that impact.
    Finally, the proposed rule requires public entities with 50 or more 
employees that choose to take advantage of this extension of time to 
amend their transition plans to establish specific schedules for 
providing access to public pedestrian walkways in compliance with the 
deadlines established by this proposed rule.
    This proposed rule, while extending the deadline for constructing 
curb ramps necessary to provide program access, expressly provides that 
access to pedestrian walkways shall be provided as expeditiously as 
possible. By requiring public entities that take advantage of the new 
deadlines to develop a transition plan with a specific compliance 
schedule, the Department anticipates that public entities will not use 
the extension as a means of delaying compliance, but will view their 
obligation to provide access to public pedestrian walkways as an 
ongoing process that will result in a steady improvement in the 
accessibility of public pedestrian routes.
    In developing a revised transition plan, public entities must 
comply with 28 CFR 35.150(d)(1), which requires public entities to 
provide an opportunity for interested persons, including individuals 
with disabilities or organizations representing individuals with 
disabilities, to participate in the development of the transition plan 
by submitting comments. Public entities should be aware that 
individuals with disabilities who rely on curb ramps to enable them to 
use the public walkways may provide valuable insight on the 
accessibility of public programs, activities, and services. For 
example, individuals with mobility impairments may be the best source 
of information about locations where existing curbs constitute 
significant barriers to their use of public streets and pedestrian 
walkways.

Regulatory Process Matters

    This proposed rule has been drafted in accordance with the 
principles of Executive Order 12866. The Department has determined that 
it is a significant regulatory action. Accordingly, it has been 
reviewed and approved by the Office of Management and Budget.
    Executive Order 12875 prohibits executive departments and agencies 
from promulgating any regulation that is not required by statute and 
that creates a mandate upon a State, local, or tribal government unless 
certain conditions are met. This proposed rule creates no new mandates. 
Consistent with the spirit of Executive Order 12875, this regulation 
modifies an existing regulatory requirement to provide flexibility to 
covered public entities in meeting their obligations under title II of 
the ADA.
    The Department has also determined that this proposed rule would 
not have a significant economic impact on a substantial number of small 
entities because it imposes no new obligations. Instead, it provides 
greater flexibility in the implementation of requirements now 
established in 28 CFR 35.150. Therefore, it is not subject to the 
Regulatory Flexibility Act, 5 U.S.C. 601-611.
    The transition plan required by this proposed rule is an 
information collection that is subject to the Paperwork Reduction Act 
and the regulations established by the Office of Management and Budget 
in 5 CFR part 1320. Therefore, the Department has submitted this 
proposed information collection to the Office of Management and Budget 
for its review and approval.

List of Subjects in 28 CFR Part 35

    Administrative practice and procedure, Buildings and facilities, 
Civil rights, Communications equipment, Individuals with disabilities, 
Reporting and recordkeeping requirements, State and local governments.

    Accordingly, Part 35 of Chapter I of Title 28 of the Code of 
Federal Regulations is proposed to be amended as follows:

PART 35--NONDISCRIMINATION ON THE BASIS OF DISABILITY IN STATE AND 
LOCAL GOVERNMENT SERVICES

    1. The authority citation for 28 CFR Part 35 continues to read as 
follows:

    Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510; Title II, Pub. L. 
101-336 (42 U.S.C. 12134).

    2. In Sec. 35.150, paragraphs (c) and (d)(2) are revised to read as 
follows:


Sec. 35.150  Existing facilities.

* * * * *
    (c) Time period for compliance. (1) Except as provided in paragraph 
(c)(2) of this section, where structural changes in facilities are 
undertaken to comply with the obligations established under this 
section, such changes shall be made no later than January 26, 1995, but 
in any event as expeditiously as possible.
    (2)(i) A public entity shall comply with the obligations of this 
section relating to provision of curb ramps or other sloped areas where 
existing public pedestrian walkways cross curbs at locations serving 
State and local government offices and facilities, transportation, 
places of public accommodation, employers, and the residences of 
individuals with 

[[Page 58465]]
disabilities no later than January 26, 2000, but in any event as 
expeditiously as possible.
    (ii) A public entity shall comply with the obligations of this 
section relating to provision of curb ramps or other sloped areas where 
existing public pedestrian walkways cross curbs at areas not subject to 
paragraph (c)(2)(i) of this section no later than January 26, 2005, but 
in any event as expeditiously as possible.
    (d) * * *
    (2) If a public entity has responsibility or authority over 
streets, roads, or walkways, its transition plan shall include a 
specific schedule for the installation of curb ramps or other sloped 
areas where pedestrian walkways cross curbs that complies with the 
requirements of paragraphs (c)(2)(i) and (c)(2)(ii) of this section.
* * * * *
    Dated: November 10, 1995.
Janet Reno,
Attorney General.
[FR Doc. 95-28679 Filed 11-24-95; 8:45 am]
BILLING CODE 4410-01-M