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Transportation officials who commented on the 2002 draft guidelines raised some major issues that are addressed below.

Alterations to Existing Facilities

The draft guidelines required alterations to existing facilities to comply with the requirements for new construction to the maximum extent feasible. Most of the improvements in the public right-of-way involve alterations to existing facilities. Transportation officials noted that the meaning of the term "to the maximum extent feasible" was not clear and wanted additional guidance on how to apply the guidelines when existing facilities are altered.

The proposed guidelines clarify that where elements, spaces, or facilities are altered, each altered element, space, or facility within the scope of the project must comply with the applicable requirements for new construction (see R202.3). The phrase "within the scope of the project" is intended to focus on whether the alteration project presents an opportunity to design the altered element, space, or facility in an accessible manner. It is not intended for additional work to be done outside the scope of the project. For example, if an alteration project involves only installing pedestrian signals at existing intersections and there are no detectable warning surfaces on the curb ramps at the intersections, the proposed guidelines would require accessible pedestrian signals and pedestrian pushbuttons to be provided at the intersections because they are within the scope of the project, but would not require detectable warning surfaces to be provided on the curb ramps because they are not within the scope of the project. The proposed guidelines also clarify that where elements are altered or added to existing facilities but the pedestrian circulation path to the altered or added elements is not altered, the pedestrian circulation path is not required to comply with the proposed requirements for pedestrian access routes (see R202.1). For example, if a new bench is installed on a sidewalk that has a cross slope exceeding 2 percent, the sidewalk is not required to be altered to reduce the cross slope because the bench is installed on the sidewalk.

In addition, the proposed guidelines recognize that it is not always possible for altered elements, spaces, or facilities to fully comply with new construction requirements because of existing physical constraints. Where existing physical constraints make it impracticable for altered elements, spaces, or facilities to fully comply with the requirements for new construction, compliance is required to the extent practicable within the scope of the project (see R202.3.1). Existing physical constraints include, but are not limited to, underlying terrain, right-of-way availability, underground structures, adjacent developed facilities, drainage, or the presence of a notable natural or historic feature. The proposed guidelines permit flexibility in alterations to existing facilities where needed.

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.

Allowances for Typical Roadway Geometry

The 1991 ADAAG and 2004 ADA and ABA Accessibility Guidelines specify a maximum running slope of 5 percent and maximum cross slope of 2 percent for walking surfaces on accessible routes. The draft guidelines adapted these requirements for pedestrian access routes in the public right-of-way and made an allowance for typical roadway geometry by permitting the grade of pedestrian access routes within sidewalks to equal the general grade established for the adjacent street or highway. The draft guidelines also permitted the cross slope of pedestrian access routes within midblock pedestrian street crossings and of curb ramps at midblock pedestrian street crossings to equal the street or highway grade.

Transportation officials recommended that additional allowances be made for typical roadway geometry. The proposed guidelines include the following allowances for typical roadway geometry:

A maximum grade of 5 percent and maximum cross slope of 2 percent are required otherwise for pedestrian access routes within sidewalks and pedestrian street crossings (see R302.5 and R302.6).