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DEPARTMENT OF JUSTICE
Office of the Attorney General
28 CFR Part 36
[A.G. Order No. 2043-96] ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD
36 CFR Part 1191
RIN 3014-AA18
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 extending the suspension of the requirements for detectable warnings at curb ramps, hazardous vehicular areas, and reflecting pools in the Americans with Disabilities Act Accessibility Guidelines (ADAAG) from July 26, 1996 to July 26, 1998. The Access Board has established an advisory committee to conduct a comprehensive review of ADAAG, including the detectable warning requirements, and plans to initiate rulemaking to revise and update ADAAG after the advisory committee issues a final report with its recommendations. The suspension of the detectable warning requirements is extended so that the Access Board can consider the advisory committee's recommendations and address the detectable warning requirements in the rulemaking to revise and update ADAAG.

EFFECTIVE DATE: July 26, 1996.

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). Electronic mail address: raggio@access-board.gov. 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 Alternate Formats

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 DW2 (Detectable Warnings Joint Final Rule). Persons using a TTY should call (202) 272-5449 or (800) 993-2822. Please give 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 electronic bulletin board at (202) 272-5448 (Access Board) and (202) 514-6193 (Department of Justice). These telephone numbers are not toll-free numbers. The final rule is also available on the Internet. It can be accessed with World Wide Web software (http://www.usdoj.gov).

Background

On April 12, 1996, the Access Board, the Department of Justice, and the Department of Transportation published a joint notice of proposed rulemaking (NPRM) to extend the suspension of the requirements for detectable warnings at curb ramps, hazardous vehicular areas, and reflecting pools in ADAAG from July 26, 1996 to July 26, 1998.1 61 FR 16232. As explained in the NPRM, the requirements were suspended initially in April 1994 to allow the agencies to consider the results of a research project conducted by Virginia Polytechnic Institute and State University on the need for detectable warnings at vehicular- pedestrian intersections. 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 and cross 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 whatever other cues were available to detect and cross 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 be explored for providing information about intersections, which may be less costly and equally or more effective than detectable warnings.

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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 (ADA). The Access Board issued ADAAG initially in 1991 (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 accessibility standards for the ADA (28 CFR part 36, appendix A; 49 CFR part 37, appendix A).

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The Access Board subsequently established an advisory committee to conduct a comprehensive review of ADAAG, including the detectable warning requirements. The advisory committee is scheduled to issue a final report with its recommendations in September 1996. The Access Board plans to initiate rulemaking to revise and update ADAAG after the advisory committee issues its report, and to address the requirements for detectable warnings in that rulemaking. In the NPRM, the Access Board, the Department of Justice, and the Department of Transportation proposed to extend the suspension of the requirements for detectable warnings at curb ramps, hazardous vehicular areas, and reflecting pools from July 26, 1996 to July 26, 1998 so that the Access Board can consider the advisory committee's recommendations and address the requirements in the rulemaking to update and revise ADAAG.

Six comments were received in response to the NPRM. Five supported extending the suspension and one opposed the action. The Council of American Building Officials (CABO), the Illinois Department of Transportation, the Airports Council International-North America (ACI- NA), the Paralyzed Veterans of America (PVA), and the Eastern Paralyzed Veterans Association (EPVA) submitted

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comments in support of the extension. CABO and EPVA are members of the advisory committee that is reviewing ADAAG and agreed that the suspension should be extended so that the Access Board can consider the advisory committee's recommendations and address the detectable warning requirements in the rulemaking to update and revise ADAAG. The Illinois Department of Transportation and ACI-NA recommended that research be done on alternative technologies. PVA expressed concerns that sufficient research has not been done on the durability and maintenance of detectable warnings.

The comment in opposition to extending the suspension was submitted on behalf of a manufacturer of detectable warnings. The commenter believed that detectable warnings are critical to the safety of individuals who are blind or visually impaired and that additional research is not necessary. The commenter also noted that there have been no reported accidents in this country as a result of detectable warnings and that studies conducted by manufacturers have demonstrated that their products can withstand various climatic conditions without undue damage.

The Access Board, the Department of Justice, and the Department of Transportation have decided to extend the suspension to July 26, 1998. The agencies believe that the detectable warning requirements should be addressed in the rulemaking to revise and update ADAAG. Extending the suspension will allow the Access Board to consider the advisory committee's recommendations, as well as available research data, and to determine whether any changes in the detectable warning requirements are warranted when ADAAG is revised and updated.

The requirements for detectable warnings at transit platform edges in section 10 of ADAAG are not included in the suspension. Those requirements remain in effect.

Pursuant to 5 U.S.C. 553(d)(3), the Access Board, the Department of Justice, and the Department of Transportation find that good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register. The current suspension expires on July 26, 1996. The rule is effective July 26, 1996 so that there will be no interruption in the suspension period. The rule does not require entities covered by the ADA to take any action.

Regulatory Process Matters

The Access Board, the Department of Justice, and the Department of Transportation have determined independently that this rule is not a significant regulatory action under Executive Order 12866. It is a significant rule under the Department of Transportation's regulatory policies and procedures since it amends the agency's ADA regulations, which are a significant rule. The Department of Transportation expects the economic impacts to be minimal and has not prepared a full regulatory evaluation.

Executive Order 12875 prohibits 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 rule creates no new mandate. Consistent with the spirit of Executive Order 12875, this rule continues the suspension of an existing regulatory requirement to allow for further review of the requirement. The Access Board, the Department of Justice, and the Department of Transportation independently certify under section 605(b) of the Regulatory Flexibility Act that this 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.

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 Secs. 4.7.7, 4.29.5, and 4.29.6 of appendix A to this part are suspended temporarily until July 26, 1998.

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.

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, 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).

Sec. 36.407  [Revised]

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

Dated: July 17, 1996.
Janet Reno,
Attorney General.

List of Subjects in 36 CFR Part 1191

Buildings and facilities, Civil rights, Individuals with disabilities.

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 May 15, 1996. Judith E. Heumann, Chair, Architectural and Transportation Barriers Compliance Board.

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:

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PART 37--TRANSPORTATION SERVICES FOR INDIVIDUALS WITH DISABILITIES (ADA)

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

Authority: The Americans with Disabilities Act of 1990 (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.

Dated: July 23, 1996.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-19198 Filed 7-24-96; 4:41 pm]
BILLING CODE 4410-01-P; 8150-01-P; 4910-62-P