36 CFR Part 1190, Proposed Accessibility Guidelines for Pedestrian Facilities in the Public Right-of-Way: Notice of Proposed Rulemaking (NPRM)

Existing Facilities That Are Not Altered

Transportation officials expressed concern about application of the draft guidelines to existing facilities that are not altered. The proposed guidelines clarify that the guidelines do not address existing facilities unless they are included within the scope of an alteration undertaken at the discretion of a covered entity (see R101.2).

The Department of Justice regulations implementing Title II of the Americans with Disabilities Act contain requirements for state and local governments regarding program accessibility and existing facilities. See 28 CFR 35.150. The Department of Transportation regulations implementing Section 504 also contain requirements for recipients of federal financial assistance from the Department regarding compliance planning. See 49 CFR 27.11 (c). The Access Board acknowledges that transportation officials are concerned about their obligations under the Title II of the Americans with Disabilities Act and Section 504 for existing facilities that are not altered, but the Access Board does not have the authority to address the application of the proposed guidelines to existing facilities that are not altered. When the Department of Justice and Department of Transportation conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504, they will address the application of the accessibility standards to existing facilities that are not altered. Comments concerning existing facilities that are not altered should be directed to the Department of Justice and Department of Transportation when they conduct rulemaking to include accessibility standards for pedestrian facilities in the public right-of-way in regulations implementing Title II of the Americans with Disabilities Act and Section 504.