4. Changes Made to the Proposed Rule

We issued a proposed rule in 2007. See 72 FR 34074 (June 20, 2007). The proposed rule was based on the report of a regulatory negotiation committee. We released a draft of the final rule in 2009. The regulatory negotiation report, proposed rule, and draft of the final rule are available on our website at:  http://www.access-board.gov/outdoor (click on Background).  The changes made to the proposed rule are discussed below.

Format and Organization

The proposed rule would have established the scoping and technical requirements for camping facilities, picnic facilities, viewing areas, trails, and beach access routes as separate guidelines to be codified as an appendix to 36 CFR part 1195. The final rule incorporates the scoping and technical requirements for these facilities into the Architectural Barriers Act Accessibility Guidelines, which are codified as Appendices C and D to 36 CFR part 1191.

Exceptions When Conditions Do Not Permit Full Compliance

The proposed rule would have permitted exceptions to only certain provisions in the technical requirements when certain conditions do not permit full compliance. The final rule restates the conditions as shown in the Table 2 under the Executive Summary, and permits exceptions based on the conditions to any provision in the technical requirements for tent pads and tent platforms, camp shelters, viewing areas, outdoor recreation access routes, trails, and beach access routes.7  The final rule also permits exceptions based on the conditions to the provisions for clear ground space at outdoor constructed features in alterations.

The proposed rule would have required compliance “to the maximum extent feasible” when an exception is used. The final rule requires compliance “to the extent practicable” when an exception is used.  This language is more in keeping with the regulatory negotiation committee report, which considered the term “feasible” to mean “reasonably-doable.”  The regulatory negotiation committee report used the example of constructing a portion of a trail in a steeply sloped area, where complying with the provision for running slope would require extensive cuts and fills that would be difficult to construct and maintain; cause drainage and erosion problems; and have a severe impact on the environment.  In this example, the portion of the trail constructed in the steeply sloped area is permitted to comply with the provision for running slope to the extent practicable.

When an exception to a specific provision in the technical requirements is used on a portion of a trail or beach access route, the final rule requires the federal agency to document the basis for its determination to use the exception and to maintain the documentation in the records for the trail or beach project in the event that a complaint is later filed alleging that the trail or beach access route does not fully comply with the applicable technical requirements.  When investigating the complaint, we will request the federal agency to provide the documentation if the federal agency claims that it used an exception based on the conditions.

Exemptions for Entire Trail or Beach Access Route

The proposed rule would have exempted an entire trail from complying with the technical requirements for trails when:

  • The combination of running slope and cross slope exceeds 40 percent for over 20 feet;
  • A trail obstacle 30 inches high or more runs across the full tread width of the trail;
  • The trail surface is neither firm nor stable for a distance of 45 feet or more;
  • The tread width is less than 12 inches wide for a distance of 20 feet or more; or
  • The trail is not required to comply with any of the technical requirements for more than 15 percent of the trail.

The final rule allows an entire trail to be exempted when an entity determines that it would be impracticable for the trail to comply with the technical requirements for trails.  This determination is made after the entity applies the exceptions for specific provisions in the technical requirements for trails to portions of the trail.  The exemption is intended to allow for conditions in the field other than those listed in the proposed rule that may render it impracticable for the trail to comply with the technical requirements for trails.  The final rule requires federal agencies to notify us if an entire trail is exempted.  A form to notify us is available at: http://www.access-board.gov/outdoor.  The form lists the conditions in the proposed rule as a basis for exempting an entire trail and allows other conditions in the field to also be a basis for exempting an entire trail.  The form will allow us to monitor exemptions and to provide guidance as necessary.

The proposed rule did not include an exemption for an entire beach access route.  The final rule does not require a beach access route to be provided when an entity determines that it would be impracticable to provide a beach access route complying with the technical provisions for beach access routes.  This determination is made after the entity applies the exceptions for specific provisions in the technical requirements for beach access routes to portions of the route.  The final rule requires federal agencies to notify us if a beach access route is not provided.  A form to notify us is available at:  http://www.access-board.gov/outdoor.

Beach Access Routes

The proposed rule would have required beach access routes to be provided where a beach is constructed and where a pedestrian route is constructed at a beach. The final rule requires beach access routes to be provided where the entity that administers or manages a beach constructs or alters circulation paths, parking facilities, toilet facilities, or bathing facilities to serve the beach or undertakes a beach nourishment project. The entity is not required to expend more than 20 percent of the costs of constructing or altering facilities serving the beach or the beach nourishment project to provide beach access routes.

The proposed rule would have required the clear width of beach access routes to be 36 inches minimum. Beach access routes provide a firm and stable surface over the sand and are used by beach visitors with and without disabilities. The final rule requires the clear width of beach access routes to be 60 inches minimum to enable individuals who use wheeled mobility devices to pass beach visitors traveling in the opposite direction.

Shared Use Paths

The preamble to the proposed rule indicated that the proposed scoping and technical requirements for trails would apply to shared use paths. A shared use path is a multi-use path that is designed primarily for use by pedestrians and bicyclists for transportation and recreational purposes. Shared use paths are physically separated from motor vehicle traffic by an open space or barrier, and are either within the highway right-of-way or within an independent right-of-way. We subsequently decided to include shared use paths in the proposed accessibility guidelines for pedestrian facilities in the public right-of-way. See 78 FR 10110 (February 13, 2013).

Trailhead Signs

The proposed rule would have required signs to be provided at trailheads to identify accessible trails. The proposed rule would have required the signs to include information on the total distance of the trail and, where exceptions have been used, the location of the first point where the trail does not fully comply with the technical requirements for trails.

Where new trail information signs are provided at trailheads on newly constructed or altered trails designed for use by hikers or pedestrians, the final rule requires the signs to include information on the length of the trail or trail segment; surface type; typical and minimum tread width; typical and maximum running slope; and typical and maximum cross slope. This requirement applies regardless of whether the trail complies with the technical requirements for trails. The information provided on the signs enables individuals with disabilities to decide whether to hike the trail based on the characteristics of the trail.

Surface Slopes

The proposed rule would have required clear ground spaces to have slopes not steeper than 1:50 in any direction, and would have permitted slopes not steeper than 1:33 when necessary for drainage. The final rule requires clear ground spaces to have slopes not steeper than 1:48 in any direction and, where the surface is other than concrete, asphalt, or boards, permits slopes not steeper than 1:20 when necessary for drainage. The final rule defines the term boards to include wood, plastic, metal, and composite products.

The proposed rule would have required outdoor recreation access routes and beach access routes to have cross slopes not steeper than 1:33, and would have permitted cross slopes not steeper than 1:20 when necessary for drainage. The proposed rule would have required trails to have cross slopes not steeper than 1:20. The final rule requires outdoor recreation access routes, trails, and beach access routes to have cross slopes not steeper than 1:48 and, where the surface is other than concrete, asphalt, or boards, permits cross slopes not steeper than 1:20 when necessary for drainage.

Outdoor Constructed Features

The proposed rule contained separate scoping and technical requirements for picnic tables, fire rings, grills, fireplaces, wood stoves, trash and recycling receptacles, water hydrants, utility and sewage hookups, outdoor rinsing showers, benches, and viewing scopes. The final rule collectively defines these elements as outdoor constructed features.

The proposed rule would have required 50 percent of picnic tables, fire rings, grills, and benches to comply with the applicable technical requirements, and would have required at least 40 percent of these elements that complied with the applicable technical requirements to be on an outdoor recreation access route. In the final rule, the scoping requirements for camping facilities, picnic facilities, viewing areas, trailheads, and trails include scoping requirements for outdoor constructed features; and the technical requirements for outdoor constructed features are contained in 1011. The final rule requires every outdoor constructed feature that complies with the applicable technical requirements in 1011 to be on an outdoor recreation access route.

The proposed rule based the size of the clear ground space at outdoor constructed features on the dimensions for clear floor or ground surfaces in 305.2 of the Architectural Barriers Act Accessibility Guidelines. The final rule bases the size of the clear ground space at outdoor constructed features on the dimensions for maneuvering clearance at clear floor or ground spaces that are confined on all or part of three sides in 305.7 of the Architectural Barriers Act Accessibility Guidelines. Outdoor constructed features can be confined on all or part of three sides by surfaces that are not firm and stable or that have changes in level. The dimensions for maneuvering clearance at clear floor or ground spaces that are confined on all or part of three sides in 305.7 of the Architectural Barriers Act Accessibility Guidelines provide additional space for maneuvering into and out of the space: 36 inches minimum by 48 inches minimum for a forward approach, and 30 inches minimum by 60 inches minimum for a parallel approach. At water hydrants, a clear ground space for a forward approach is required on each side of the water hydrant to enable individuals with disabilities to operate the water hydrant from their right side or left side. At rinsing showers, the size of the clear ground space is based on the dimensions for turning space in 304.3.1 of the Architectural Barriers Act Accessibility Guidelines to enable individuals with disabilities to turn in the space.

The proposed rule would have required outdoor rinsing showers to provide grab bars. Outdoor rinsing showers typically are provided at beaches for rinsing off sand and lotions that people apply to their bodies when they are outdoors. They are not designed for bathing and do not offer privacy. Individuals who use wheeled mobility devices are not expected to transfer from the devices when using outdoor rinsing showers and do need grab bars for this purpose. Therefore, the final rule does not require grab bars at rinsing showers.

The proposed rule also would have required outdoor rinsing showers to provide a fixed shower head at a lower height. The final rule requires outdoor rinsing showers to provide a hand-held shower spray unit that has at least one fixed position located 15 inches minimum and 48 inches maximum above the ground. Where vandalism is a consideration, a fixed shower head located 48 inches above the ground is permitted in place of a hand-held shower spray unit.

The proposed rule would have required benches to provide a backrest and armrests. The final rule does not require a backrest and armrests due to the varied designs and configurations of benches.

Elements Exempted in Final Rule

The proposed rule included proposed scoping and technical requirements for utility sinks and pit toilets. The final rule exempts these elements from the scoping requirements in F212.3 and F213.1 of the Architectural Barriers Act Accessibility Guidelines.

Elements Not Addressed in Final Rule

The proposed rule included proposed scoping and technical requirements for recreational vehicle parking spaces in general parking areas at camping facilities. The final rule includes scoping and technical requirements for recreational vehicle parking spaces in camping units with mobility features and recreational vehicle pull-up spaces at dump stations. The final rule does not address recreational vehicle parking spaces in other areas.

The proposed rule included proposed scoping and technical requirements for mobility device storage facilities and warming huts. The final rule does not address these elements because they are not typically provided at the facilities addressed in the final rule.