Regulatory Negotiation Committee Report

September 30, 1999

Background

The Architectural and Transportation Barriers Compliance Board (Access Board) is responsible for developing accessibility guidelines under the Americans with Disabilities Act of 1990 (ADA) to ensure that new construction and alterations of facilities covered by titles II and III of the (ADA) are readily accessible to and usable by individuals with disabilities. (1) The Access Board initially issued the Americans with Disabilities Act Accessibility Guidelines (ADAAG) in 1991 (36 CFR part 1191, Appendix A). ADAAG consists of general sections (ADAAG 1 to 4) that apply to all types of buildings and facilities, and special application sections (ADAAG 5 to 12) that contain additional requirements for certain types of buildings. (2)

Under the ADA, the Department of Justice is responsible for issuing regulations to implement titles II and III of the Act. The regulations issued by the Department of Justice must include accessibility standards for newly constructed and altered facilities covered by titles II and III of the ADA. The standards must be consistent with the accessibility guidelines issued by the Access Board. The Department of Justice has adopted ADAAG as the Standard for Accessible Design for title III of the ADA. (28 CFR part 36, Appendix A). (3)

Titles II and III of the ADA cover a wide variety of recreation facilities such as boating and fishing facilities, golf courses, parks, places of amusement, play areas, sports facilities, and trails. Newly constructed and altered recreation facilities and outdoor developed areas are required to comply with ADAAG, as adopted by the Department of Justice as the Standards for Accessible Design, where the provisions can be applied. For example, parking areas, entrances, and toilet rooms that are part of newly constructed and altered recreation facilities and outdoor developed areas must comply with ADAAG. Some recreation facilities have unique features for which additional provisions and special application sections need to be developed. The Access Board convened a Recreation Access Advisory Committee (RAAC) in July 1993 as the first step in developing the additional provisions and special application sections. The RAAC issued a report in July 1994 which addressed the various types of recreation facilities and identified the features of each facility type that are not adequately addressed by ADAAG. The RAAC made recommendations for developing accessibility guidelines for those features.

The Access Board published an Advance Notice of Proposed Rulemaking (ANPRM) in September 1994 requesting public comment on the RAAC's recommendations. The public comments expressed support for many of the RAAC's recommendations. However, the public comments also revealed a lack of consensus on some major issues regarding outdoor developed areas among interests that potentially would be affected by accessibility guidelines for those facilities. Consequently, the Access Board decided to develop proposed accessibility guidelines for outdoor developed areas through regulatory negotiation. Regulatory negotiation is a supplement to the traditional rulemaking process that allows for face-to-face negotiations among representatives of affected interests, including the agency, with a goal of arriving at a consensus decision on the text of a proposed rule. The proposed rule is then published in the Federal Register and the public has an opportunity to comment. Based on public comments received, the final rule may differ from the proposed rule.

The Regulatory Negotiation Committee on Accessibility Guidelines for Outdoor Developed Areas was established in June 1997. A notice of intent to form a regulatory negotiation committee was published in the Federal Register on April 8, 1997. This notice proposed a committee membership and requested comments on the establishment of the committee and the proposed membership. One group, the Association of Blind Athletes, was added to the committee membership after several meetings. Committee members represented the diverse interests of those affected by this rulemaking including persons with disabilities, owners and operators of outdoor developed areas, Federal, State, and local land management agencies, designers, and trails groups. The final membership of the committee included:

  • American Society of Landscape Architects
  • American Camping Association
  • American Trails
  • Appalachian Trail Conference
  • Association for Blind Athletes
  • Hawaii Commission on Persons with Disabilities
  • KOA, Inc.
  • National Association of State Park Directors
  • National Association of State Trail Administrators
  • National Center on Accessibility
  • National Council on Independent Living
  • National Recreation and Park Association
  • National Spinal Cord Injury Association
  • New York State Department of Environmental Conservation
  • Paralyzed Veterans of America
  • Partners for Access to the Woods
  • Rails to Trails Conservancy
  • State of Washington, Interagency Committee for Outdoor Recreation
  • TASH
  • U.S. Army Corps of Engineers
  • U.S. Department of Agriculture, Forest Service
  • U.S. Department of Interior, National Park Service
  • U.S. Department of Transportation, Federal Highway Administration
  • Whole Access
  • U.S. Access Board

The committee met ten times between June 1997 and July 1999 as a full committee. In addition, several workgroups met to gather information or develop recommendations for the full committee. Committee members sought input from the public on issues related to accessibility in outdoor developed areas. The meetings were held in different locations across the country and were attended by over 250 members of the public. A formal public comment period was held at the end of each day of the full committee meetings. The committee participated in tours of several outdoor sites as a part of their meetings. The committee held several meetings in conjunction with conferences such as the International Trails and Greenways Conference, or at sites, such as the National Center on Accessibility at Bradford Woods in Martinsville, Indiana and the Easter Seal Camp in Empire, Colorado. All committee meetings were facilitated by the Federal Mediation and Conciliation Service. An interest based model of negotiation was used during the negotiations.

An interest based model relies on the individual members of the committee to negotiate for their respective constituent groups, with the outcome of the whole in mind. Committee members do not represent their individual opinion, but instead the opinions, or "interest", of the other members of their associations. This model requires a give-and-take by all parties in the negotiation.

The committee began its deliberations by examining available information related to providing access for people with disabilities in outdoor developed areas. The committee relied heavily upon the Recreation Access Advisory Committee (RAAC) Recommendations for Accessibility Guidelines for Recreational Facilities and Outdoor Developed Areas (July 1994). They also examined and discussed other approaches used by States and municipalities in developing accessibility guidelines for trails, picnic and camping facilities, and beaches.

The committee identified basic principles to guide its negotiations. The committee believed that accessibility guidelines should:

  1. Protect resource and environment
  2. Preserve experience
  3. Provide for equality of opportunity
  4. Maximize accessibility
  5. Be reasonable
  6. Address safety
  7. Be clear, simple, and understandable
  8. Provide guidance
  9. Be enforceable and measurable
  10. Be consistent with ADAAG (as much as possible)
  11. Be based on independent use by persons with disabilities

The regulatory negotiation committee reached consensus on the accessibility guidelines for newly constructed and altered outdoor developed areas covered by the ADA. Where preserving the environment, the nature of the outdoor experience, and access interests conflicted, reaching consensus was difficult. The guidelines proposed by the committee include consideration of the latest information, design, and construction practices in existence. Committee members explored many approaches and compromised in many areas to reach agreement on minimum accessibility guidelines for outdoor developed areas.