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The Access Board has posted for 60 days of Public Review their Draft Final Outdoor Areas Accessibility Guidelines for developed areas such as campgrounds, picnic areas, etc and also for trails.
See Comments from other organizations and agencies on Access Board Draft Final Rule of Accessibility Guidelines
Agencies and organizations have raised several concerns about aspects of the proposed guidelines which seem vague and which may cause problems with compliance.
Evaluating an existing trail for accessibility
by a wheelchair user
The new guidelines contain a number of changes from previous versions which should be noted. The original report of the RegNeg Committee struck a balance between the desire to require full accessibility while recognizing the difficulties of construction in the natural environment.
Trail designers, contractors, and managers should ask themselves how the new Guidelines would affect their ability to comply in a reasonable and cost-effective manner while improving trail accessibility.
In 2007, the Access Board issued a Notice of Proposed Rulemaking (NPRM) and followed with public hearings. Over 600 comments were received. Comparing the new Guidelines with the previous NPRM, questions have been raised about:
Trails are required to comply with the accessibility requirements “to the maximum extent feasible.” However, the term “feasible” is not defined in the guidelines.
The NPRM permitted exceptions where compliance would “substantially alter” the function or purpose of the facility or the setting. The new Guidelines change this to “fundamentally alter”
In the outdoor environment the terms “substantially alter” or “fundamentally alter” are more clear measures of how much change is too much for the experience or environment of a natural setting. Tall retaining walls across a mountainside with switch-backed ramping would be “technically” feasible in that it would be possible to construct. However, it would definitely result in an unacceptable alteration to the setting, the program, the environment, and the experience.
The NPRM allowed exceptions where "Compliance would cause substantial harm to cultural, historic, religious, or significant natural features or characteristics." The new Guidelines require designers to cite specific laws: the Endangered Species Act, National Environmental Policy Act, National Historic Preservation Act, Wilderness Act; or other Federal, State, or local laws, "the purpose of which is to preserve threatened or endangered species; the environment; or archaeological, cultural, historical, or other significant natural features."
The Access Board has the legal authority to require the trail to be rebuilt if a complaint is filed by any member of the public as to the lack of accessibility on the trail if they determine it is not in compliance with the applicable accessibility guidelines. The Access Board will decide if that the trail builder/designers decision to not make the entire trail comply with guidelines was or was not "reasonable" ...based only on their judgement ...because there are now no other guideposts by which to judge. This deletion from the guidelines, with no replacement by other guideposts, leaves the trail building community in very large jeopardy.
Where one aspect of accessibility (e.g. trail grade) cannot be met, trail designers must still comply with provisions for width, surface, cross-slope, 60-inch wide passing places, etc. The NPRM allowed compliance to stop where one condition (e.g. narrow passage between boulders) made accessibility infeasible.
If the decision is made that a new or altered trail will not comply with the guidelines, a Notification must be filed with the U.S. Access Board, however the process for that filing has not been defined.
ADDITIONAL NEW REQUIREMENTS IN THE GUIDELINES
Some requirements not previously included in proposed accessibility guidelines should also be evaluated:
Applying the Guidelines to trails
Trails are defined in F106.5 as a pedestrian route developed primarily for outdoor recreational purposes. A pedestrian route developed primarily to connect elements, spaces, or facilities within a site is not a trail. These provisions require trails to comply with the technical provisions for trails in 1017 when all the following conditions are met:
Changing the overall grade, width, or surface of an existing trail, or rerouting an existing trail are examples of alterations that are required to comply with 1017. Routine or periodic maintenance activities that are performed to return an existing trail to the condition to which the trail was originally designed are not required to comply
Guidelines apply to Federal agencies and others who perform work on Federal lands
The Accessibility Guidelines apply to Federal land management agencies, including the U.S. Forest Service, National Park Service, Fish and Wildlife Service, Bureau of Land Management, Bureau of Reclamation, and Army Corps of Engineers. The draft final accessibility guidelines also apply to the following non-federal entities that construct or alter facilities on Federal lands on behalf of the Federal government:
Private entities that construct or alter camping facilities, picnic facilities, or beach facilities on Federal lands pursuant to a concession contract or other arrangement with a Federal agency under which the Federal agency reviews or approves the design of the facility and has a property interest in the facility;
State or local government entities that construct or alter camping facilities, picnic facilities, or beach facilities on Federal lands pursuant to an agreement with a Federal agency under which the Federal agency reviews or approves the design of the facility and has a property interest in the facility; and
Non-profit organizations and State or local government entities that enter into partnerships with a Federal agency to construct or alter trails or viewing areas on Federal lands.
How to Submit Comments
Comments should be submitted by December 18th, 2009 using any of the following methods:
The Access Board is required by the Rehabilitation Act to establish minimum accessibility guidelines for facilities covered by the Architectural Barriers Act. After the Access Board publishes the accessibility guidelines for outdoor developed areas, the General Services Administration and Department of Defense will adopt the guidelines as the accessibility standards that Federal agencies are required to use when constructing or altering outdoor developed areas covered by the Architectural Barriers Act.
After a 60 day comment period, the Board will proceed to finalize the guidelines and republish as a final rule based on the public comments received. Additionally, the Access Board is collaborating with the Federal land management agencies to develop a separate technical assistance document to accompany the final rule. The draft final guidelines are available on the Access Board’s website: www.access-board.gov/news/outdoor-draft.htm.
BACKGROUND ON REGULATIONS FOR TRAILS AND OTHER FACILITIES UNDER ADA
In 1997, the Regulatory Negotiation Committee on Outdoor Recreation Developed Areas was formed by the Architectural and Transportation Barriers Compliance Board (Access Board) to develop accessibility recommendations for nationwide application to outdoor-recreation facilities. The intention was to expand the application of earlier legislation, including the Americans With Disabilities Act (ADA) and the Architectural Barriers Act (ABA), to outdoor-recreation facilities.
The committee’s 27 members included representatives from parks and outdoor recreation associations, disability groups, state and Federal land management agencies, and others. ATC was an active participant. The committee met ten times between June 1997 and July 1999. In addition, several working groups convened to gather information or develop recommendations for the full committee, and committee members sought input from the public. Members also examined and discussed approaches used by states and municipalities in developing accessibility guidelines for trails, picnic and camping facilities, and beaches. The committee submitted its report to the Access Board in September 1999.
In 2002, the USDA Forest Service began developing agency-specific guidelines, building on its own work from the early 1990s and integrating the Regulatory Negotiation committee’s report. ATC and A.T. club representatives worked closely with the USFS to develop a pragmatic draft that remained true to providing accessibility while also providing careful consideration for the primitive A.T. environment.
In 2005, the Forest Service Trail Accessibility Guidelines (FSTAG) and the Forest Service Outdoor Recreation Accessibility Guidelines (FSORAG) directives noted above were released for public review and comment. The Appalachian Trail Conservancy and affected clubs submitted formal comments on the proposed guidelines.
In 2006, the Forest Service completed the legal requirements and the FSTAG and FSORAG were adopted and are required to be used on the national-forest system lands. The Forest Service specifications that are equal to or higher than the Access Board’s will remain in place even after the Access Board’s guidelines are final. However, any Forest Service technical specifications that are to a lower standard than the final guidelines put in place by the Access Board will need to be changed. More information and copies of the Forest Service documents are available at www.fs.fed.us/recreation/programs/accessibility/.
On June 20, 2007, the Access Board issued a Notice of Proposed Rulemaking (NPRM) to establish accessibility guidelines pursuant to the Architectural Barriers Act (ABA) for camping facilities, picnic facilities, viewing areas, outdoor recreation access routes, trails, and beach access routes that are constructed or altered by or on behalf of the Federal government. The NPRM was based on a Regulatory Negotiation Committee Report.
Public hearings on the NPRM were held in Denver, CO on July 24, 2007; in Washington, DC on September 6, 2007; and in Indianapolis, IN on September 26, 2007. An information meeting on beach access routes was also held in Washington, DC on July 23, 2008. Over 600 comments were received on the NPRM.
The Access Board prepared a draft of the final accessibility guidelines based on the NPRM and the comments on the NPRM. The Access Board reviewed the draft final accessibility guidelines with the accessibility program managers for the Federal land management agencies. The Access Board is making the draft final accessibility guidelines available for public review to provide an additional opportunity for other interested persons to participate in the rulemaking and comment on the document. After reviewing comments received on the draft final accessibility guidelines, the Access Board issued the accessibility guidelines as a draft final rule.